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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


NOTES 


ON  THE 


LAW  OF 


REAL  PROPERTY 


BY 

CHARLES  ALFRED  GRAVES,  A.  M.,  LL.  D. 

Professor  of  Law,  University  of  Virginia 


INDIANAPOLIS 

THE  BOBBS-MERRILL  COMPANY 

PUBLISHERS 


Copyright  1912 

BY 

CHARLES  ALFRED  GRAVES 


TABLE   OF  CONTEXTS 


CHAPTER  I. 


Classes  of  Pbopebtt. 
Section.  Page. 

1.  Ancient  names  of  property 1 

2.  Tenements — Feudal  system 3 

3.  Lands  5 

4.  Goods  and  chattels 6 

5.  Incorporeal  tenements    6 

6.  Hereditaments    7 

7.  Real  and  personal  property 8 

8.  Estates  in  lands,  etc 9 

9.  Real  estate   10 

10.  Personal  estate  in  land  or  chattels  real 11 

11.  Timber,  grass,  and  crops 13 

12.  Mineral  rights 14 

13.  Incorporeal  personalty  15 

14.  House  built  by  one  man  on  the  land  of  another 16 

CHAPTER  II. 

Fixtckes. 

15.  Definition    18 

16.  Classification    19 

/.    Fixtures  between  the  Heir  and  the  Executor. 

17.  Introductory  19 

18.  The  criterion  of  a  fixture 22 

19.  The  doctrine  of  Teaff  v.  Hewitt 22 

20.  Constructive  annexation    23 

21.  Vendor  and  vendee  and  mortgagor  and  mortgagee 26 

22.  Examples  of  fixtures — Machinery 26 

23.  Rolling  stock  of  railways 29 

24.  Miscellaneous  fixtures 30 

25.  Rule  relaxed  in  favor  of  the  executor 31 

26.  General  principles   32 

27.  What  erections  removable — Trade  fixtures 33 

iii 


iv  TABLE    OF    CONTENTS. 

Section.  Page. 

28.  Domestic  fixtures  34 

29.  Agricultural  fixtures  35 

30.  Manure    36 

31.  Qualification  of  the  right  of  removal  by  tenant 37 

32.  Time  of  removal 37 

CHAPTER  III. 

Estates  of  Freehold. 

I.   Freehold  Estates  of  Inheritance. 

33.  Classification   39 

34.  Fee-simple — Nature  of  an  estate  in  fee 39 

35.  Limitation  of  a  fee  by  feoffment 39 

36.  Limitation  of  a  fee  by  devise 41 

37.  Base  or  qualified  fee 42 

38.  Fee-conditional  at  common  law 44 

39.  Estate-tail   46 

40.  Estates-tail  in  Virginia 49 

41.  Limitation  of  estates  in  fee  and  in  tail 51 

II.   Freehold  Estates  not  of  Inheritance. 

42.  Estate  for  the  tenant's  own  life 52 

43.  Tortious  conveyances   52 

44.  Estovers  and  emblements ". 52 

45.  Lessees  of  tenants  for  life . .  .• 53 

46.  Waste   54 

47.  Estate  for  the  life  of  another  than  the  tenant 55 

48.  Estates-tail  after  the  possibility  of  issue  extinct 55 

CHAPTER  IV. 

Estates  Less  than  Freehold. 

I.   Estate  for  Years. 

49.  An   estate   for   years   distinguished   from   an   interesse 

termini °" 

50.  Words  proper  to  create  a  lease 56 

51.  Actual  lease  .distinguished  from  a  contract  to  lease 58 

52.  Creation  of  leases  for  years 60 

53.  Rents  reserved  upon  a  lease 62 

54.  The  effect  of  quia  emptores  on  rents 63 

55.  Rents  granted  out  of  land 65 


TABLE    OF    CONTENTS.  V 

Section.  PAGE. 

56.  Right  of  distress  in  Virginia 66 

57.  Out  of  what  may  rent  be  reserved 67 

58.  Mode  of  reserving  rent 67 

59.  When  is  rent  due 67 

60.  On  the  lessor's  death  to  whom  is  the  rent  payable? 68 

61.  Apportionment  of  rent 69 

62.  Covenants  in  a  lease 71 

63.  Do  covenants  in  a  lease  bind  the  assignee  or  sub-lessee?.  72 

64.  Examples  of  covenants  running  with  the  land 75 

65.  Tenancy  from  year  to  year 77 

66.  Notice  to  quit 77 

II.    Estate  at  Will. 

67.  Creation  of  estates  at  will 79 

III.   Estate  by  Sufferance. 

68.  Tenants  by  sufferance 80 

69.  Emblements  when  an  estate  is  less  than  freehold 80 

CHAPTER  V. 

Descents. 

70.  Introductory  83 

71.  The  Virginia  statute  of  descents 86 

72.  Construction  of  the  statute 87 

73.  Per  stirpes  and  per  capita 89 

74.  Descent  from  an  infant 92 

75.  Collaterals  of  the  half-blood 95 

76.  Bastards    97 

77.  Heirs  not  in  esse  at  the  ancestor's  death 98 

78.  Descent  in  United  States 99 

79.  Statute  of  distribution 100 

CHAPTER  VI. 
Devises. 

80.  The  English  and  Virginia  statutes 102 

81.  Who  may  make  a  will 103 

82.  What  may  be  willed 104 

83.  Several  sorts  of  wills 105 

84.  Formalities  for  making  a  will 106 

85.  Who  are  competent  witnesses  to  a  will Ill 


vi  TABLE    OF    CONTENTS. 

Section.  Page. 

86.  Effect  of  a  duly  executed   codicil   on  a  will   not  duly 

executed    113 

87.  Initials  116 

88.  Letters,  etc.,  as  wills 116 

89.  Time  at  which  a  will  speaks 117 

90.  Lapsed   devises 118 

91.  Revocation  of  a  will 118 

92.  Lost  wills 120 

93.  Testamentary    capacity 120 

94.  Wills  of  personalty 121 

95.  Personal  representatives 121 

96.  Who  may  be  an  executor  or  administrator 121 

97.  Who  is  an  executor  de  son  tort 122 

98.  Temporary  grant  of  administration 122 

99.  Is  the  executor  of  A's  executor  entitled  to  act  as  the 

executor  of  A 123 

100.  Powers  of  the  executor  before  he  proves  the  will 123 

101.  When  the  will  appoints  no  executor,  who  is  entitled  to 

qualify  as  administrator? 123 

102.  Probate  of  wills 124 

103.  Appraisement  of  personal  estate 125 

104.  Inventory  of  the  personal  estate 125 

105.  Powers  of  personal  representatives 125 

106.  Liability  of  personal  representatives 125 

107.  Order  in  which,  on  deficiency  of  assets,  the  debts,  of  the 

decedent  are  to  be  paid 126 

108.  Order  in  which,  on  sufficiency  of  assets,  the  decedent's 

property  is  to  be  applied  to  the  payment  of  his  debts.   127 

109.  Effect  of  a  creditor's  appointing  his  debtor  his  executor.   128 

110.  Right  of  retainer  by  executor,  or  administrator  among 

debts  of  equal  degree 128 

111.  The  different  sorts  of  legacies 128 

CHAPTER  VII. 
Conveyances. 

I.   Modes  of  Conveyance. 

112.  Conveyances  at  common  law 132 

113.  Conveyances  operating  under  the  statute  of  uses 132 

114.  The  statute  of  uses 132 

115.  Operation  of  covenant  to  stand  seised,  bargain  and  sale, 

and  lease  and  release 134 


TABLE    OF    CONTENTS.  vii 

Section.  "  Page. 

116.  The  statute  of  uses  in  the  United  States 136 

117.  The  statutory  deed  of  grant 137 

118.  Ut  res  magis  valeat  quam  pereat  as  applied  to  deeds 138 

119.  Form  of  deed  of  grant  in  Virginia 139 

120.  Construction  of  deeds 140 

121.  Deeds  poll  and  indentures 142 

122.  Deeds  made  by  an  attorney  in  fact 144 

123.  Deed  by  grantor  out  of  possession  with  an  adverse  pos- 

session against  him 144 

II.    Warranty,  or  the  Ancient  Covenant  Real. 

124.  Definition  of  warranty 145 

125.  Two  kinds  of  warranty 145 

126.  Examples  of  lineal  and  collateral  warranty 145 

127.  Effect  of  the  ancient  warranty 147 

128.  Explanation  of  the  apparent  injustice  of  collateral  war- 

ranty      147 

129.  Status  now  of  the  ancient  feudal  warranty 148 

III.    The  Modern  Covenants  of  Title. 

130.  Implied  covenants 148 

131.  Express  covenants  for  title 151 

132.  Covenants  to  which  the  purchaser  of  land  is  entitled. . . .  154 

133.  Importance  to  the  buyer  of  other  covenants  than  that  of 

general  warranty 156 

134.  Covenants  for  title  running  with  the  land 158 

135.  Measure  of  damages 159 

CHAPTER  VIII. 

Title  by  Adverse  Possession. 

136.  Introductory    162 

137.  The  Virginia  statute  of  limitations  as  to  land 162 

138.  Effect  of  the  statutes 163 

139.  What  is  adverse  possession  of  land? 163 

140.  Distinction   between    claim   of   title   without   color   and 

claim  of  title  with  color 167 

141.  Application  of  the  doctrine  of  adverse  possession  to  con- 

flicting patents  or  deeds  to  land 169 

142.  Disabilities  of  coverture,  infancy,  and  insanity 174 

143.  Tacking    disabilities     174 

144.  Period  to  be  subtracted  in  computing  time  in  Virginia. .  175 


viii  TABLE    OF    CONTENTS. 

CHAPTER  IX. 

Co-tenants. 

I.  Joint  Tenants. 
Section.  Page. 

145.  Definition    176 

146.  Unities  of  joint  tenants 176 

147.  Unity  of  interest 176 

148.  Unity  of  possession 177 

149.  The  right  of  survivorship  between  joint  tenants 178 

150.  Maxims  applicable  to  survivirshop 178 

II.  Tenants  by  Entireties. 

151.  Definition    180 

152.  Abolition  of  survivorship  between  joint  tenants 181 

153.  Abolition  of  survivorship  between  tenants  by  entireties. .  181 

154.  Zollman  v.   Moore 183 

III.  Tenants  in  Common. 

155.  Nature  of  tenancy  in  common 184 

IV.    Coparceners. 

156.  Nature  of  coparcenary 185 

157.  Trespass    187 

158.  Waste 187 

159.  Account    188 

160.  Receiving  more  than  comes  to  his  just  share  and  propor- 

tion    189 

161.  Receiving  more  than  his  just  share  and  proportion  in 

Virginia    189 

162.  Partition    191 

163.  Partition  in  equity 192 

164.  Sale,  instead  of  partition  in  kind 193 

165.  Hotchpot    195 

166.  What  is  an  advancement? 196 

167.  What  is  the  evidence  that  a  gift  is  by  way  of  advance- 

ment?     196 

168.  To  whom,  and  by  whom,  can  an  advancement  be  made?  198 

169.  What  property  can  be  given  by  way  of  advancement; 

and    with    what   property   shall    it   be    brought    into 
hotchpot?    198 

170.  For  whose  benefit  is  property  brought  into  hotchpot?. . .  198 

171.  As  at  what  time  is  the  advancement  valued? 198 

172.  Has  the  person  advanced  his  election  to  come  into  hotch- 

pot?       199 


TABLE  OF  CONTENTS.  ix 

CHAPTER  X. 

Remainders. 
Section.  Page. 

173.  Definition   of   remainder 200 

174.  The  two  kinds  of  remainders 200 

175.  The  three  great  rules  for  remainders 202 

176.  Rules    for   remainders    deduced    from   the   three   great 

rules   204 

177.  Examples  of  vested  remainders 206 

178.  Fearne's  four  classes  of  contingent  remainders 207 

179.  Remainders  which  do  or  do  not  come  under  Fearne's 

third  class    208 

180.  The  doctrine  of  abeyance  of  the  fee  simple 209 

181.  Fearne's  view  of  abeyance 210 

182.  Additional  rules  for  remainders 210 

183.  Contingency  with  a  double  aspect 211 

184.  Cross  remainders  211 

185.  Destruction  at  common  law  of  contingent  remainders..   213 

186.  Mode  at  common  law  of  preserving  a  contingent  remain- 

der from   destruction 214 

187.  Rule  of  perpetuities  for  contingent  remainders 215 

188.  The  cy  pres  doctrine  as  to  contingent  remainders....   215 

189.  Contingent  remainders  descendible  and  devisable 216 

190.  Assignment    of   contingent    remainders 217 

191.  Sale  of  contingent  interests  under  decree  of  court 218 

192.  Words  of  limitation  and  words  of  purchase 219 

193.  The  rule  in  Shelley's  Case 220 

194.  The  five  requisites  to  the  operation  of  the  rule  in  Shel- 

ley's Case 221 

195.  Origin  of  the  rule  in  Shelley's  Case 222 

196.  The  inflexible  character  of  the  rule  in  Shelley's  Case. . .  224 

197.  How  can  the  operation  of  the  rule  in  Shelley's  Case  be 

prevented    225 

198.  Status  of  the  rule  in  Shelley's  Case  in  the  United  States.  227 

199.  Virginia  statutes  intended  to  abolish  the  rule  in  Shel- 

ley's Case   228 

200.  Interpretation  of  the  words  "Heirs,"  "Heirs  of  the  body," 

"Issue,"    and    "Children" 230 

201.  The  rule  in  Wild's  Case 235 

202.  Doctrine  in  Virginia  as  to  the  word  "Children" 238 

203.  Surviving  children    239 

204.  Examples  of  limitations  to  surviving  children  in  Vir- 

ginia     240 


x  TABLE    OF    CONTENTS. 

Section.  Page 

205.  Virginia    statutes    altering    the    common    law    doctrine 

concerning  remainders  241 

CHAPTER  XI. 
Executory  Interests. 

206.  Definitions    244 

207.  The  sacred  rule  as  to  executory  interests 244 

208.  How  to  recognize  executory  interests 245 

209.  Practical  test  of  an  executory  interest 245 

210.  Examples  of  executory  uses 245 

211.  Examples  of  executory  devises 247 

212.  Conditional   limitations    249 

213.  Remainders  in  deeds  hy  way  of  use,  and  in  devises 252 

214.  Rules  for  executory  devises 253 

215.  Rule  of  perpetuities  for  executory  interests 256 

216.  Examples    of    executory    interests    violating    the    rule 

against  perpetuities    257 

217.  Examples  of  executory  interests  not  violating  the  rule 

against  perpetuities    '. 258 

218.  Upon  what  state  of  facts  does  remoteness  depend 259 

219.  Are  there  two  rules  against  perpetuities,  one  for  con- 

tingent   remainders    and    another    for    executory    in- 
terests?       261 

220.  Are  there  two  rules  against  perpetuities  in  Virginia?. . .   261 

221.  Definite  and  indefinite  failure  of  issue 263 

222.  Effect  of  a  limitation  over,  dependent  on  if  he  die  with- 

out issue,  on  a  prior  estate  for  life 265 

223.  Effect  of  the  words  if  he  die  without  issue  on  a  prior 

fee  simple  267 

224.  No  estate  tail  by  implication  when  the  failure  of  issue 

is  definite  269 

225.  If  he  die  without  issue  now  in  Virginia 271 

226.  Effect  of  Virginia  statutes  on  limitations  contingent  on 

dying  without  issue 273 

227.  Devise  to  A  for  life,  and  if  A  die  without  issue,  remain- 

der to  B  and  his  heirs 274 

228.  Effect  of  definite  failure  of  issue  on  rule  in  Shelley's 

Case — View  of  Professor  Minor 276 

229.  Devise  to  A  and  his  heirs;  and  if  A  dies  without  issue, 

remainder  to  B  and  his  heirs 279 

230.  Devise  to  A  and  the  heirs  of  his  body;  and  if  A  die  with- 

out issue,  then  to  B  and  his  heirs 280 


TABLE    OF    CONTENTS.  xi 

Section.  Page. 

231.  Devise  to  A  and  the  heirs  of  his  body;  and  if  A  die  with- 

out issue  living  at  his  death,  then  to  B  and  his  heirs.   281 

232.  Executory  limitations  before  and  after  January  1,  1820.  .  .282 

233.  Executory  interests  in  personalty 285 

234.  Executory  interests  under  Virginia  statutes 287 

CHAPTER  XII. 

Powers. 

J.    Powers  of  Appointment  over  Property. 

235.  Definition    291 

236.  Example  of  a  power  under  the  statute  of  uses 291 

237.  Examples  of  a  power  under  the  statute  of  wills 292 

238.  The  several  kinds  of  powers 293 

239.  Fraud    on    power 295 

240.  Aider  in  equity  of  the  defective  execution  of  a  power. . .  .  296 

II.   Estates  in  Land  with  a  Power  of  Disposition  Annexed. 

241.  Power  of  appointment  distinguished  from  an  interest  in 

land    299 

242.  Effect  of  a  power  of  disposition  over  property  on  the  es- 

tate of  the  devisee — Validity  of  limitation  over 300 

243.  When  an  express  estate  for  life  is  given,  and  a  power  of 

disposition  over  the  reversion  is  annexed 301 

244.  When  a  life  estate  is  given  devisee,  with  power  of  dispo- 

sition over  the  reversion — Exception  to  general  rule.  .   302 

245.  Cases  following  May  v.  Joynes 303 

246.  Cases  distinguishing  May  v.  Joynes 305 

247.  When  an  estate  is  given  to  a  person  generally,  or  indefi- 

nitely (as,  "to  A"),  with  a  power  of  disposition 306 

248.  Status  of  the  doctrine  of  Smith  v.  Bell 307 

CHAPTER  XIII. 
Estates  of  Condition. 

249.  Nature  and  classification  of  conditions — Precedent  and 

subsequent    310 

250.  Conditions  precedent  and  subsequent;  how  distinguished  312 

251.  Conditions  precedent  or  subsequent;    which  favored  in 

law 315 

252.  Words  proper  for  a  condition  subsequent 318 

253.  Condition  subsequent  distinguished  from  a  limitation. . .   321 


xii  TABLE    OF    CONTENTS. 

Section.  Page. 

254.  Marriage  as  a  limitation  or  condition  subsequent 323 

255.  Collateral  limitation   325 

256.  Collateral  limitation  by  way  of  a  base  fee 328 

257.  Condition   subsequent   distinguished   from   a   covenant; 

covenant  favored   330 

258.  Condition  subsequent  distinguished  from  a  trust 333 

259.  Not  condition  subsequent  when  a  conveyance  of  land  is 

for  a  particular  purpose 334 

260.  Trust  when  a  conveyance  is  for  a  particular  purpose.  .. .   337 

261.  Construction  of  conveyances  providing  for  support  of  the 

grantor  or  a  third  person  by  the  grantee 340 

262.  Construction  of  deeds  containing  building  restrictions.  .   343 

263.  Construction  of  deeds  prohibiting  the  sale,  etc.,  of  in- 

toxicating liquors  on  the  premises 347 

264.  Void  conditions;  precedent  or  subsequent. 348 

265.  Conditions  void  because  impossible 349 

266.  Conditions  void  because  unlawful 352 

267.  Conditions  void  because  repugnant  or  uncertain 354 

268.  Conditions  in  restraint  of  marriage 356 

269.  Summary  of  the  effect  of  conditions  in  wills  in  restraint 

of  marriage    362 

270.  Conditions  in  restraint  of  alienation — Forfeiture  by  ces- 

ser or  by  limitation  over 365 

271.  Restraint  on  alienation  without  condition  or  conditional 

limitation    374 

'272.    Condition  subsequent — How  created 380 

273.  Condition  subsequent — Who  is  liable  to  forfeit  for  its 

breach    381 

274.  Condition  subsequent — Who  may  perform •.   384 

275.  Breach  of  condition  subsequent — Who  may  enforce  for- 

feiture therefor    386 

276.  Breach  of  condition  subsequent — Is  a  possibility  of  re- 

verter alienable   in  Virginia? 389 

277.  Condition   subsequent — Mode   of  enforcement  of  forfei- 

ture  for   breach 394 

278.  Condition  subsequent — No  damages  at  law  for  breach. . .   399 

279.  Condition     subsequent — No     specific     performance     in 

equity  402 

280.  Condition  subsequent — Injunction  in  equity 408 

281.  Breach  of  condition  subsequent — Equity  will  not  enforce 

forfeiture    410 

282.  Breach  of  condition  subsequent — Equity  will  sometimes 

relieve  against  forfeiture  therefor 418 


TABLE    OF    CONTENTS.  xiii 

Section.  Page. 

283.  Breach  of  condition  subsequent — Waiver  of  forfeiture..   424 

284.  Discharge   of   condition  subsequent — Doctrine   of   Dum- 

por's  Case  430 

285.  Dumpor's  Case  in  the  United  States 441 

CHAPTER  XIV. 

Dower  and  Curtesy. 

286.  Definition    of    Dower    448 

287.  Definition  of  Curtesy 451 

288.  Origin  of  dower  and  curtesy 454 

289.  Differences  between  curtesy  and  dower 455 

290.  Difference  between  seisin  in  fact,  seisin  in  law,  and  a 

right  of  action  or  entry 456 

291.  Dower  when  the  husband  is  a  joint  tenant  or  tenant  by 

entireties     462 

I.   Dower. 

292.  Dower  in  equitable  estates  465 

293.  Dower  in  equitable  estates  in  the  United  States 467 

294.  Dower  in  equitable  estates  in  Virginia 470 

295.  What   ownership   of  the   husband   entitles  the   wife   to 

dower   473 

296.  Dower  in  reversions  and  remainders 476 

297.  Dower  when  husband  has  reversion  on  which  rent  is  re- 

served       478 

298.  No  dower  out  of  dower 479 

299.  Dower  in  encumbered  land 481 

300.  Purchase-money   mortgage    483 

301.  Dower  in  the  equity  of  redemption  of  mortgaged  land..   487 

302.  Dower  in  equity  of  redemption  when  mortgage  is  fore- 

closed in  the  husband's  lifetime 490 

303.  Dower  in  equity  of  redemption — Extent  of  in  the  United 

States  493 

304.  Extent  in  Virginia  of  dower  in  equity  of  redemption.  . . .   496 

305.  Exoneration  of  dower  in  mortgaged  land  out  of  the  hus- 

band's personalty  500 

306.  Exoneration  of  dower  in  mortgaged  land  out  of  the  hus- 

band's other  land 505 

307.  Present  value  of  the  widow's  vested  right  of  dower 508 

308.  Present  value  of  wife's  contingent  right  of  dower 510 

309.  For   what  proportion   of  the   principal  of  a   mortgage 

debt  is  the  widow  liable  as  between  herself  and  the 
heirs   511 


xiv  TABLE    OP    CONTENTS. 

Section.  Page> 

310.  Dower  when  the  husband's  estate  of  inheritance  termi- 

nates in  his  lifetime,  or  at  his  death 512 

311.  Cases  in  which  the  widow  has  dower,  although  the  hus- 

band's estate  of  inheritance  has  come  to  an  end 514 

312.  Cases  in  which  there  is  no  dower  on  the  ending  of  the 

husband's  inheritance 517 

313.  Widow's  quarantine — Definition  and  extent 520 

314.  Widow's  quarantine — Nature  and  incidents 522 

315.  Widow's  quarantine — Privileges  and  obligations 525 

316.  Widow's  unassigned  dower — Nature  and  incidents 527 

317.  Assignment  of  dower — Procedure 532 

318.  Dower  according  to  common  right 536 

319.  Dower  in  kind  impracticable 541 

320.  Dower  when  the  husband  dies  seised  of  several  tracts  of 

land,  which  descend  to  the  heir 547 


REAL  PROPERTY. 


CHAPTER  I. 

The  Classes  of  Property. 

§  1.  Ancient  Names  of  Property. — The  terms  real  and  per- 
sonal, as  applied  to  property,  are  of  comparatively  modern 
date,  and  the  latter  embraces  at  present  many  things  which 
in  early  times  were  altogether  unknown  as  the  subjects  of 
property.  Let  us  first  consider  property  in  early  times, 
and  the  ancient  names  which  were  used  to  designate  the  two 
great  classes  into  which  it  has  always  been  divided.  In 
order  to  do  this,  we  must  transport  ourselves  in  thought 
to  England,  and  beneath  the  feudal  system  introduced  by 
William  the  Conqueror  in  1066. x 

1  Feudalism  ix  England. — The  feudal  relation,  as  it  existed  on 
the  continent,  was  founded  on  the  feudal  tenure  of  land,  the 
essence  of  which  is  the  "holding  of  land  by  the  grant  of  a  lord, 
instead  of  holding  it  simply  as  a  member  of  the  commonwealth." 
And  the  political  principle  was  that  "every  tenant  in  chief  of  the 
Crown  should  make  himself  as  nearly  a  sovereign  prince  as  he 
could,  and  that  his  under-tenants  should  owe  allegiance  and 
obedience  to  their  immediate  lord  only,  and  not  to  the  royal  or 
imperial  head."  Thus  it  destroyed  national  unity,  and  weakened 
the  central  power.     (Freeman,  Norman  Conquest,  V.,  246,  247.) 

Modern  writers  agree  that  the  elements  of  feudalism  existed 
in  England  before  the  Norman  Conquest.  "There  was  no  sys- 
tematic feudalism,  but  the  elements  of  feudalism  were  there  in 
full  vigor."  (Freeman,  Norman  Conquest,  I.,  62.)  The  rela- 
tion of  lord  and  man  existed,  but  it  was  at  first  purely  personal, 
and  not  necessarily  connected  with  the  holding  of  land.  And 
so  military  service  was   required   of  the   owners   of  land;    but 

1 
1 


2  REAL    PROPERTY.  [Chap.  1 

Let  us  pay  a  visit  to  an  Englishman  or  Norman  of  that 
period  at  his  home  in  the  country.  We  find  him  asserting 
his  right  to  a  certain  number  of  acres  of  land,  which  he 
calls  his  own.  It  is  his  landed  property,  and  he  is  a  landed 
proprietor.  But  the  ground  is  not  all;  he  claims  the  dwell- 
ing he  has  erected  upon  it,  the  stable,  the  barn,  and  the 
other  structures.     In  the  fields  there  are  horses  and  cattle, 

this  was  a  service  due  from  the  citizen  to  the  state,  and  not  from 
a  vassal  to  the  lord.  (Taylor,  Origin  and  Growth  of  the  English 
Constitution,  I.,  133.)  To  create  the  true  feudal  relation,  it 
was  necessary  to  blend  these  two  elements,  so  that  the  relation 
of  lord  and  vassal  should  become  that  of  lord  and  tenant;  and  so 
that  the  military  service  should  be  due  from  the  tenant  of  land 
to  the  lord  of  whom  he  received  it.  This  change  was  brought 
about  after  the  Norman  Conquest,  and  thus  the  feudal  system. 
was  introduced  into  England.  But  it  is  said  that  it  was  not 
until  the  reign  of  William  Rufus  (1087-1100)  that  it  grew 
into  a  methodical  system  of  exactions  and  oppressions.  This 
result  is  ascribed  to  Ranulf  Flambard,  justiciar  to  that  monarch, 
in  whose  hands  was  the  management  of  all  the  fiscal  and 
judicial  business.  (Stubbs,  Constitutional  History  of  England, 
I.,  339.)  And  Freeman  says  of  Flambard,  "Tendencies  which  had 
been  at  work  before  the  Conquest,  and  to  which  the  Conquest 
gave  increased  strength,  were  by  him  pushed  to  their  logical 
results,  and  were  worked  into  an  harmonious  system  of  oppres- 
sion."    (Norman  Conquest,  V.,  253.) 

But  though  the  feudal  tenure  of  land,  with  its  onerous  rents 
and  services,  was  thus  fastened  on  England,  the  political  principle 
which  weakened  the  Crown  and  strengthened  the  nobility  never 
obtained  a  foot-hold  there;  for  at  the  great  Council  of  Salis- 
bury (108G),  a  decree  was  passed  that  every  freeman  in  the 
realm  should  take  the  oath  of  fealty  to  King  William,  "thus  break- 
ing in  upon  the  feudal  compact  in  its  most  essential  attribute, 
the  exclusive  dependence  of  the  vassal  upon  his  lord."  (2 
Hallam,  Middle  Ages,  430.)  For  the  oath  was  required,  not  only 
from  the  great  land-owners,  but  from  their  tenants;  and  thereby 
William  became  sovereign  of  England,  and  not  merely  a  feudal 
lord  over  a  few  feudal  chiefs.  Thus  the  "tendency  of  feudalism 
to  a  divided  land,  with  a  weak  central  government,"  was  effectu- 
ally checked  in  England.  (Freeman,  Norman  Conquest,  IV.,  472; 
V.,  246.) 


§§1,2]  CLASSES  OF  PROPERTY.  3 

growing  crops,  and  farming  utensils;  in  the  dwelling,  house- 
hold and  kitchen  furniture;  and  in  the  barn,  the  garnered 
products  of  his  fields.  If  you  ask  him,  "What  property  do 
you  possess?"  he  will  claim  as  his  own  land  and  houses, 
cattle  and  furniture,  growing  and  gathered  crops.  It  is,  he 
thinks,  all  his  alike,  and  with  his  own  he  may  do  what  he 
wills. 

There  is  one  difference,  however,  which  he  will  readily 
admit.  The  land,  the  houses,  the  trees,  and  the  growing 
grain  are  fixed,  and  must  remain  where  they  are;  they  are 
immovable.  But  the  horses  and  cattle,  farming  implements 
and  furniture,  and  the  severed  crops,  he  may  take  with  him 
wherever  he  goes.  They  are  movable.  This  division  of 
property  nature  has  made  and  common  sense  teaches,  and 
it  is  the  division  of  the  civil  law,  and  holds  to  this  day  in 
Louisiana. 

Why,  then,  talk  of  real  and  personal?  And  why  call  his 
land  a  tenement,  or  dignify  his  humble  dwelling  with  the 
high-sounding  title  of  hereditament?  Reason  would  never 
teach,  and  we  must  seek  the  answer  elsewhere. 

§  2.  Tenements — Feudal  System. — Our  landed  proprietor 
lives  in  England  towards  the  end  of  the  eleventh  century, 
some  years  after  the  Norman  Conquest.  He  may  be  a  Nor- 
man, and  have  come  over  with  the  Conqueror;  or  he  may  be 
a  Saxon  franklin,  who  has  not  been  entirely  dispossessed  of 
his  land  to  satisfy  the  rapacity  of  the  Norman  soldiery. 
However  this  may  be,  he  is  the  occupier  of  the  land,  and  so 
far  better  off,  perhaps,  than  many  others.  But  he  is  bur- 
dened with  onerous  exactions,  on  many  occasions  and  for 
various  purposes.  He  must  attend  his  superior  lord  (per- 
haps the  king)  to  the  wars,  though  this  is  the  least  of  his 
hardships.  He  must  pay  aids  to  ransom  his  lord  from 
prison,  to  make  his  eldest  son  a  knight,  and  to  provide  a 
dowry  for  his  eldest  daughter.  While  a  minor,  the  lord 
claimed  the  right  of  wardship,  and,  as  guardian,  took  all 
the  profits  of  his  land,  making  him  no  return;  he  claimed 


4  REAL    PROPERTY.  [Chap.  1 

also  the  right  to  marry  him  to  whom  he  pleased,  or  to  ex- 
act the  value  of  the  connection  in  money;  if  he  would  sell 
his  land,  he  must  pay  a  sum  of  mone}r  to  the  lord,  a  fine 
for  the  tight  of  alienation;  should  he  not  have  been  a 
minor  at  his  father's  death,  he  had  yet  to  pay  a  sum  of 
money  before  the  lord  would  allow  him  to  take  possession 
of  his  little  patrimony.  To  this  lord  he  has  done  homage, 
kneeling  before  him  and  professing  to  become  his  man,  and 
to  him  he  has  sworn  the  oath  of  fealty  (fidelity).  Should  he 
hold  directly  of  the  crown  (in  capite),  he  is  still  further 
burdened  by  additional  exactions. 

Should  he  inquire,  "What  does  this  mean?"  he  would 
learn  that  he  is  not  the  absolute  owner  of  his  land,  but  a 
tenant,  though  it  should  be  in  fee-simple;  that  he  is  "seised 
as  of  fee,"  and  holds  his  land,  not  allodially,  in  his  own 
right,  but  feudally,  of  a  superior.  If  he  is  a  Norman  and 
holds  under  grant  of  the  king,  he  is  informed  that  his  land 
was  not  given  "freely  and  for  nothing;"  not  as  the  reward 
of  faithful  service  already  performed,  but  on  condition  of 
return  to  be  made  hereafter,  and  services  in  future;  that 
the  crown  is  lord  paramount  of  all  the  land  in  the  king- 
dom; that  all  lands  are  held  mediately  or  immediately  of 
the  crown  that  he  holds  his  land  as  a  vassal  of  a  lord; 
and  that  the  exactions  of  which  he  complains  are  the  rents 
and  services  incident  to  the  holding,  or  to  the  tenure.  And 
the  Saxon  learns  that  the  same  rule  applies  to  him — how- 
ever it  may  have  come  about — and  that  he,  too,  is  but 
a  tenant  of  land,  and  to  the  tenure  are  annexed  the  rents 
and  services.1 

1  Tenure  of  English  Land. — "The  great  facts  of  William's  reign 
did  everything  to  strengthen  the  doctrine  that  land  should  be  held 
of  a  lord.  We  have  seen  that,  from  the  beginning,  he  dealt  with 
all  lay  estates  in  England  as  land  forfeited  to  the  Crown,  which 
the  king  granted  out  afresh,  whether  the  grant  was  to  the  former 
owner  or  to  some  new  grantee.  The  foreign  soldier  who  received 
his  reward  in  a  grant  of  English  land,  held  that  land  as  a  plain 
matter  of  fact,  and  without  any  legal  subtleties,  as  a  personal  gift 


§§  2,  3]  CLASSES    OF    PROPERTY.  5 

If  he  asks,  "Is  not  my  land  mine?"  he  is  answered,  "No; 
not  the  land  absolutely;  that  belongs  to  the  king;  you  have 
an  interest  in  the  land,  which  is  all  any  subject  can  have; 
that  interest,  which  may  vary  in  degree,  is  called  your 
estate.  It  may  be  for  years,  or  for  your  life,  or  to  you  and 
your  heirs,  but  still  it  is  only  an  estate,  a  certain  amount 
of  interest  in  the  land,  and  not  the  land  itself."  If  the  Saxon 
should  inquire  the  origin  and  reason  of  such  a  rule,  the  re- 
ply of  the  Norman  would  be:  "It  is  the  Feudal  System. 
Your  land  is  a  feud  or  fief,  as  mine  is.  Mine  was  really 
given  as  the  reward  of  military  services,  on  condition  of 
such  and  other  services  in  future.  Yours  is  constructively 
on  the  same  foundation." 

§  3.  Lands. — The  Saxon  begins  to  look  about  him ;  "And 
so  you  say  my  land  is  not  my  own;  how  as  to  those  other 
things,  my  house  and  barn,  for  instance;  and  how  as  to 
my  timber  and  growing  crops;  are  these  land  also?"  The 
reply  is:  "Yes,  land  is  of  far  more  importance  than  any- 
thing that  can  be  affixed  to  it,  quidquid  plantatur  solo,  solo 
cedit.  Land  includes  everything  above,  usque  ad  ccelum; 
everything  below,  usque  ad  or  cum.  The  houses  were  but 
timber  and  brick,  but  these  being  fixed  to  the  soil  belong 
to  it,  and  so  do  your  timber  and  growing  crops,  and  the 

front  William.  The  Englishman  who  bought  back  his  land,  or  re- 
ceived it  back  again  as  a  loan,  did  not  hold  it  as  a  gift  in  exactly 
the  same  sense  as  his  Norman  neighbor,  but  it  was  a  royal  grant 
by  something  more  than  a  legal  fiction.  His  land  had  been,  if 
only  for  a  moment,  in  the  king's  hands,  to  be  dealt  with  as  the 
king  chose,  and  the  king  had  chosen  to  give  it  back  to  him,  rather 
than  to  keep  it  himself,  or  to  give  it  to  anybody  else.  The  law- 
yer's doctrine,  that  all  land  must  be  a  grant  from  the  Crown,  is 
thus  accidentally  an  historical  truth."  (Freeman,  Norm.  Conq., 
V.,  248.)  And  he  adds:  "Let  it  once  be  established  that  land 
is  held  as  a  fief  from  the  Crown,  and  the  whole  of  the  feudal  in- 
cidents follow  naturally." — Hid.  253,  254,  where  this  proposition 
is  demonstrated. 


6  REAL    PROPERTY.  [Chap.  1 

ores  and  minerals  under  the  ground.     Should  you  sell  your 
land,  you  would  be  considered  as  including  all  these." 

§  4.  Goods  and  Chattels. — The  Saxon  glances  over  the 
fields,  and  sees  his  horses  and  cattle.  "Are  these  my  own?" 
he  asks,  "or  have  I  in  them,  too,  merely  an  estate?"  "No," 
he  is  told,  "they  are  yours  absolutely.  The  feudal  system 
cares  nothing  for  such  trifles;  there  are  no  degrees  of  in- 
terest in  them,  no  estates ;  they  are  not  the  objects  of  tenure, 
are  not  holden  by  you  of  any  one.  But  your  lands  and  houses 
are  holden  of  a  superior.  They  are  called  tenements  (teneo, 
to  hold)  for  that  very  reason.  These  movables,  household 
and  kitchen  furniture,  cattle,  etc.,  are  goods  and  chattels, 
but  we  call  your  lands  and  houses  tenements."1 

§  5.  Incorporeal  Tenements. — So  far  we  have  noticed  only 
such  things  as  are  corporeal,  having  body  and  substance,  and 
which  may  be  seen  and  handled.  We  have  seen  that  land 
includes  all  that  is  affixed  to  it  of  a  corporeal  nature.  But 
can  nothing  be  annexed  to  land  except  what  is  visible  and 
tangible?  The  Norman  may  be  lord  of  a  manor.  As  an- 
nexed to  his  land,  by  virtue  of  his  ownership  of  it,  he  may 
have  a  right  to  present  a  priest  to  the  parish  church  which 
he  has  built  and  endowed.  Should  he  sell  his  manor,  how- 
ever, the  right  to  present  to  the  church  would  pass  with  it, 

1  No  Tenure  of  Chattels. — "The  feudal  law  and  feudal  tenures 
pertained  only  to  land.  It  can  be  easily  seen  from  the  very  na- 
ture of  the  relation  between  lord  and  vassal,  and  the  peculiar 
character  of  the  tenure,  that  personal  property  could  not  with 
any  propriety  be  made  the  subject  of  these  relations.  Personal 
property  is  too  transitory  in  its  nature,  too  much  consumed  in 
the  using,  to  be  the  sign  of  the  permanent  tie  between  the  su- 
perior lord  and  his  tenants.  In  addition  to  this  consideration 
was  the  fact  that  movable  property,  in  the  nourishing  times  of 
the  feudal  system,  formed  but  an  insignificant  part  of  the  gen- 
eral wealth,  and  had  attained  none  of  the  importance  which  it 
has  reached  in  modern  times."  (Pomeroy,  Introduction  to  Mu- 
nicipal Law,  §  449.  See  lb.  §  417  to  §  495,  for  an  extended  discus- 
sion of  the  feudal  system.) 


§§  3-6]  CLASSES    OF    PROPERTY.  7 

and  belong  to  the  new  owner.  This  right,  called  an  advow- 
son,  is  incorporeal,  but  being  annexed  to  the  land,  it  is  a 
tenement.  Again,  as  incident  to  the  land  he  owns,  the  pro- 
prietor may  have  a  right  to  pasture  his  cattle  on  the  land  of 
his  neighbor,  a  right  of  common;  or  to  have  a  path  over 
his  neighbors  land,  a  right  of  way.  So,  too,  as  incident 
to  his  land  in  the  hands  of  another,  he  may  have  a  right  to 
receive  an  annual  rent.  So  we  see  there  ma}'  be  incorporeal 
tenements  as  well  as  those  which  are  corporeal.1 

§  6.  Hereditaments. — The  term  hereditaments  signifies 
anything  which  ma}'  be  inherited;  anything  which  on  the 
death  of  the  ancestor  descends  to  his  heir.  By  the  law 
of  England  and  the  United  States,  when  a  man  dies,  his 
goods  and  chattels  (now  called  ■personal  property)  do  not 
belong  at  once  to  his  children  or  next  of  kin;  there  are  no 
heirs  to  inherit  personalty;  the  title  to  it  vests  in  the  per- 
sonal representative,  the  executor  nominated  in  the  will,  or 
the  administrator  appointed  by  the  court,  whose  duty  it  is 
to  pay  the  debts,  and  then  to  divide  the  surplus,  if  any, 
among  those  entitled  by  law.  But  the  title  to  land,  real 
property,  realty,  is  upon  the  ancestor's  death  intestate  at 
once  in  the  heir,  or  heirs,  who  are  said  to  inherit  it.  Every- 
thing, then,  which  can  descend  to  the  heir  is  called  heredita- 
ment.     Nothing   which   goes   to    the    administrator    can   be 

1  Incorporeal  Tenements. — It  has  been  doubted  whether,  prop- 
erly speaking,  there  are  incorporeal  tenements.  (2  Washburn, 
Real  Prop.,  250.)  Preston  says:  "Perhaps  a  rent  or  a  common 
is  not  a  tenement,  agreeable  to  the  strict  rules  of  the  law  of  ten- 
ures; it  is  a  tenement,  however,  in  reputation;  it  is  a  tenement 
within  the  meaning  of  several  statutes,  particularly  the  statute 
(de  donis)  of  intails."  (Preston  on  Estates,  p.  8.)  Lord  Coke, 
however,  is  express  that  "tenement  is  a  large  word  to  pass,  not 
only  lands  and  other  inheritances  which  are  holden,  but  also  of- 
fices, rents,  profits,  a  prendre  out  of  lands,  and  the  like,  wherein 
a  man  hath  any  frank  tenement,  and  whereof  he  is  seised  ut  de 
libero  tenemento." — (1  Thomas's  Coke,  219.  See  to  same  effect, 
Van  Rensselaer  v.  Read.  26  N.  Y.,  558,  566.) 


8  REAL    PROPERTY.  [Chap.  1 

more  than  a  chattel.  Like  tenements,  hereditaments  are 
both  corporeal  and  incorporeal.  Hereditaments  are  usually 
also  tenements,  but  not  necessarily  so.  Thus,  a  chattel  which 
by  special  custom  goes  to  the  heir  with  the  land  (heirloom) 
is  for  that  reason  a  hereditament;  but  it  is  not  a  tenement, 
for  there  is  no  tenure  of  chattels.  For  the  learning  as  to 
tenements  and  hereditaments,  see  Preston  on  Estates,  pp. 
6-14.1 

§  7.  Real  and  Personal  Property. — Let  us  now  consider  the 
origin  of  the  terms  real  and  personal  as  applied  to  property. 
Actions  for  the  recovery  of  land  had,  long  before  the  use  of 
the  word  as  to  property,  been  called  real  actions,  because, 
the  land  being  immovable  and  indestructible,  the  identical 
land,  the  very  thing  (res),  could  be  recovered.     The  action 

1  Tenements,  etc.,  Meaning  of. — As  used  with  reference  to 
corporeal  property,  the  words  lands,  tenements  and  hereditaments, 
denote  things  real,  the  subjects  of  ownership,  and  not  the  estate 
or  interest  which  the  tenant  may  have  in  such  subjects.  Thus, 
one  may  hold  a  tenement  for  a  term  of  years,  and  a  devise  at 
common  law  of  the  testator's  hereditaments  conferred  on  estate 
for  life  only.  See  Moor  v.  Denn,  2  Bos.  &  Pul.  247,  where  it  is  said 
of  the  word  hereditament  occurring  in  a  will:  "The  settled  sense 
of  that  word  is  to  denote  such  things  as  may  be  the  subject-mat- 
ter of  inheritance,  but  not  the  inheritance  itself;  and  [it]  cannot, 
therefore,  by  its  own  intrinsic  force,  enlarge  an  estate  prima  facie 
a  life  estate  into  a  fee."  (See  3  Jarman  on  Wills,  44;  2  Redfield 
on  Wills,  330;  1  Sharswood  &  Budd's  Leading  Cases  on  Real 
Property,  60.) 

But  it  would  seem  that  as  to  incorporeal  realty  the  idea  of 
tenement  or  hereditament  is  inseparable  from  the  degree  of  in- 
terest. As  to  land,  we  cannot  conceive  of  it  without  the  exist- 
ence of  the  fee-simple  and  freehold  in  some  one,  though  the  pos- 
sessor may  have  a  mere  chattel  interest,  as  a  tenant  for  years. 
Such  land  is  therefore  a  tenement  or  hereditament  with  reference 
to  the  higher  estate  subsisting  somewhere,  and  is  therefore  cap- 
able of  being  inherited,  and  may  be  holden.  But  as  to  incorporeal 
rights  issuing  out  of  land,  or  exercisable  within  it,  if  the  owner 
of  the  right  has  a  term  of  years  only  therein,  non  constat,  that 
any  higher  estate  exists  anywhere,  and  therefore  tenure  and  in- 


§§  6-8]  CLASSES    OF    PROPERTY.  9 

to  recover  a  chattel  was  not  called  real,  because  the  action 
was  for  damages,  and  not  for  the  thing  itself.  Indeed,  ex- 
cept in  the  action  of  replevin,  there  was  no  way  at  common 
law  to  compel  the  defendant  to  restore  the  very  thing  if  he 
chose  to  withhold  it.  Hence  the  action  was  in  personam, 
to  obtain  in  damages  a  useful  vindication  (vindicatio  utilis), 
and  not  in  rem,  to  recover  the  specific  res  (vindicatio  rei). 
It  followed  that,  though  lands  and  chattels  were  equally 
real,  land  was  called  real,  because  the  action  to  recover  it 
was  in  rem,  and  chattels  were  called  personal,  because  the 
action  as  to  them  was  in  personam.  This  is  the  view  taken 
by  Williams,  who  rejects  Blackstone's  explanation,  that 
things  personal  "may  attend  the  owner's  person  wherever 
he  thinks  proper  to  go,"  remarking  that  goods  and  chattels 
were  not  usually  called  things  personal  until  they  had  be- 
come too  numerous  and  important  to  attend  the  person  of 
their  owners.  He  adds  that  the  words  real  and  personal, 
as  applied  to  property,  were  not  in  common  use  until  the 
beginning  of  the  eighteenth  century,  after  the  statute  of  12 
Charles  II.,  ch.  2-A  (1660),  had  given  a  final  blow  to  the  feudal 
system  by  turning  the  military  tenure  by  knight  service  into 
tenure  by  free  and  common  socage.1      (Williams,  E.  P.,  p.  6.) 

§  8.  Estate  in  Lands,  etc. — We  have  now  completed  our 
consideration  of  things  real;  i.  e.,  lands,  tenements  and 
hereditaments,  or,   to  use  the   modern  term,  real  property. 

heritance  cannot  be  predicated  of  it.  (See  Cooley's  Blackstone, 
Book  II.,  p.  14,  n.  1;  1  Tho.  Co.  (219);  Preston  on  Estates,  12.) 

1  No  Tenure  in  Virginia. — Though  the  statute  of  12  Charles  II., 
ch.  24  (1660),  changed  knight  service  into  socage,  it  did  not  abol- 
ish tenure,  and  it  is  still  a  received  maxim  in  English  law  that 
"all  lands  are  hclden,"  except  those  belonging  to  the  crown.  In 
Virginia,  the  letters  patent  of  James  I.  granted  the  land  "to  be 
holden  of  us,  our  heirs  and  successors,  as  of  our  manor  of  East 
Greenwich,  in  the  county  of  Kent,  in  free  and  common  socage 
only,"  etc.  (1  Hen.  Stat.,  66  and  88.)  But  there  is  now  no  tenure 
of  land  in  Virginia,  it  having  been  enacted  in   1779,  "That  the 


10  REAL    PROPERTY.  [Chap.  1 

Let  us  next  consider  estates  in  things  real.  And  these  are, 
(1),  Estates  real;  and  (2),  Estates  personal.  For  there  ma)r 
be  personal  estate  in  a  real  thing,  though  there  cannot  be 
real  estate  in  a  thing  personal. 

§  9.  Real  Estate. — According  to  Blackstone  (2  Bl.  Com. 
103),  an  estate  in  lands,  tenements  and  hereditaments, 
signifies  such  interest  as  the  tenant  has  therein,  the  word 
signifying  the  condition,  or  circumstance,  in  which  the 
owner  stands  with  regard  to  his  property.  Estates  in  land 
are  divided  into  estates  of  freehold,  and  estates  not  of  free- 
hold. And  an  estate  of  freehold  under  the  feudal  rules 
answers  to  real  estate,  and  estates  less  than  freehold  are  re- 
garded as  personal  estate  only. 

A  freehold  estate  in  lands,  tenements  and  hereditaments, 
is  an  estate  for  the  tenant's  own  life,  or  for  the  life  of  an- 
other (pur  autre  vie),  or  any  larger  estate;  for  example,  an 
estate-tail,  or  a  fee-simple.  And  the  law  considers  any  es- 
tate to  be  for  life,  if  by  possibility  it  may  endure  so  long. 
For  this  reason  an  estate  to  a  widow  during  her  widowhood 

reservation  of  royal  mines,  of  quit  rents,  and  all  other  reserva- 
tions  and  conditions  in  the  patents  or  grants  of  land  from  Great 
Britain  under  the  former  government  shall  be,  and  are,  hereby- 
declared  null  and  void,  and  that  all  lands  thereby  respectively 
granted  shall  be  held  in  absolute  and  unconditional  property  to 
all  intents  and  purposes  whatsoever,  in  like  manner  with  the 
lands  hereinafter  to  be  granted  by  this  commonwealth."  (10 
Hen.  Stat.  pp.  64,  65.)  This  makes  the  ownership  of  land  in 
Virginia  allodial,  and  the  same  is  true  in  the  other  States  of  the 
Union.  "So  that  fidelity  to  the  State  is  now  the  only  fealty  that 
any  man  owes  for  his  lands;  his  only  lord  paramount  is  the  peo- 
ple of  the  State  where  such  lands  are  situated."  (Taylor,  Land- 
lord and  Tenant,  §  11;  Pomeroy,  Municipal  Law,  §  464.)  And 
Judge  Cooley  says:  "In  America,  as  in  England,  the  sovereignty 
is  recognized  as  the  source  of  all  title,  and  the  State  succeeds 
thereto  in  default  of  heirs;  but  this  right  is  not  peculiar  to  the 
feudal  system;  neither  is  the  eminent  domain,  which  is  some- 
times referred  to  as  a  remaining  incident  of  the  feudal  system." 
(2  Bl.  Com.  (102),  n.  7.) 


§§8-10]  CLASSES    OF    PROPERTY.  11 

is  a  life  estate.  We  may,  therefore,  define  a  freehold  as 
such  an  estate  in  a  real  thing  as  is  of  indefinite  duration, 
and  by  possibility  may  last  for  life.  And  this  is  also  the 
definition  of  real  estate.  Under  this  definition,  estates  at 
will  and  by  sufferance  are  to  be  excepted,  as  they  are  certainly 
not  estates  of  freehold,  being  scarcely  regarded,  because 
of  their  precarious  character,  as  estates  at  all;  and  estates 
by  statute-merchant,  statute-staple  and  elegit,  are  also  to  be 
excepted  because  they  are  merely  securities  for  debts;  and, 
as  they  pass  with  the  debts  to  the  personal  representatives, 
they  are  treated  as  personal  estates.  (2  Bl.  Com.  162.) 
A  mortgage  debt  is  treated  as  an  interest  in  land  of  a  per- 
sonal nature  in  a  court  of  equity,  but  at  law  the  estate  of  a 
mortgagee  in  fee-simple  is  real  estate,  and  passes  to  the 
mortgagee's  heirs.    ("Williams  Peal  Prop.  421.) 

We  thus  see  that  the  proper  and  technical  meaning  of 
"real  estate"  is  a  certain  degree  and  quantity  of  interest 
in  real  property;  but  the  words  are  sometimes  used  to  de- 
scribe land  itself,  as  when  one  says,  "my  estate  at  A."  And 
this  popular  meaning  may  be  given  to  "real  estate,"  even 
when  the  words  occur  in  a  statute,  if  the  context  clearly 
shows  this  to  be  the  legislative  intent.  See  Troth  v.  Uob'rl- 
son,  78  Va.,  46,  55. 

§  10.  Personal  Estates  in  Land ;  or  Chattels  Seal. — The 
most  important  estate  under  this  head  is  a  term  of  years 
in  land,  or  as  it  is  commonly  called,  a  lease.1  Is  this 
real  or  personal  estate?  If  for  one  hundred  years,  will  it 
on  the  death  of  the  owner  (tenant,  lessee)  go  to  his  admin- 
istrator or  to  his  heir?  Such  a  term  is  personal  estate, 
although  it  is  an  interest  in  land;  but  as  it  savors  of  land, 
it  is  therefore,  says  Lord  Coke,  called  a  chattel-real.  (3  Tho. 
Coke,  293.) 

1  For  other  examples  of  chattels  real,  see  2  Bl.  Com.  386.  These 
are  not  in  existence  in  the  United  States,  except  the  estate  by  the 
writ  of  elegit,  and  that  has  been  abolished  in  Virginia.  (Code, 
§  3581.) 


12  REAL    PROPERTY.  [Chap.  1 

The  reason  why  a  term  of  years  is  not  real  estate  is  of 
feudal  origin.  We  have  seen  that  freehold  and  real  estate 
are  the  same  degree  of  interest  in  land.  But  an  estate  for 
life,  when  the  Conqueror  parcelled  out  the  land  of  England 
to  his  chiefs,  was  the  smallest  degree  of  interest  a  freeman 
would  consent  to  hold.  So  a  life  estate  was  the  lowest 
freehold  estate,  as  we  have  seen.  And  when  terms  of  years 
came  to  be  recognized  as  estates,  they  were  considered  in- 
ferior to  estates  of  freehold,  and  the  doctrine  was  established 
that  a  freehold  is  larger  in  contemplation  of  land  than  a 
term  of  years,  however  long.     (Williams,  B.  P.,  413.) 

Again,  a  freehold  estate  required  a  peculiar  ceremonial  in 
its  bestowal,  called  livery  of  seisin;  i.  e.,  delivery  of  the 
seisin  or  feudal  possession.  This  was  the  feudal  investiture. 
The  lord  went  with  the  vassal  upon  the  land  and  gave  him 
a  twig  or  turf,  in  token  of  the  delivery  of  the  possession,  in 
the  presence  of  the  countryside  as  witnesses.  A  lease,  not 
being  a  feudal  grant,  required  no  such  procedure.  It  would 
pass  by  a  mere  verbal  agreement,  completed  by  the  tenant's 
going  alone  and  entering  upon  the  land.  Hence  Blackstone's 
definition  of  a  freehold  estate  as  one  that  requires  livery 
of  seisin.  (2  Bl.  Com.,  ch.  7.)  But  a  lease  was  not  re- 
garded as  really  giving  the  lessee  the  ownership  of  the  land, 
even  for  the  term.  The  lessor  did  not  part  with  the  seisin; 
there  was  no  livery  of  seisin.  It  was  a  mere  contract  be- 
tween the  lessor  and  the  lessee,  by  which  the  latter  became 
steward  or  bailiff  of  the  former,  holding  the  land  at  an  annual 
valuation.  A  lease  is  to  this  day  in  England,  and  generally 
in  the  United  States,  a  mere  chattel,  no  matter  what  its 
duration.1  Williams,  B.  P.  8;  Taylor,  Landl.  and  Ten. 
§  14,  n.  2. 

1  The  Code  of  Virginia  (§  5,  cl.  10)  gives  these  statutory  defini- 
tions ("unless  such  construction  would  be  inconsistent  with  the 
manifest  intention  of  the  legislature") : 

"The  word  'land'  or  'lands,'  and  the  words  'real  estate,'  shall  be 
construed  to  include  lands,  tenements  and  hereditaments,  and  all 


§§10,11]  CLASSES    OF    PROPERTY.  13 

§  11.  Timber,  Grass,  and  Crops.— We  have  now  seen  that 
personal  property  passes  to  the  administrator  of  the  deceased 
owner,  and  that  there  may  be  a  personal  estate  in  land 
(chattel  real)  which  also  goes  to  the  administrator,  whereas 
all  other  estates  in  land  which  do  not  cease  with  the  owner's 
death  (estates  of  inheritance)  descend  to  the  heir.  And  we 
have  seen  that  if  the  owner  of  land  sells  it,  all  the  timber  and 
growing  crops  pass  with  the  land  to  the  grantee.  And  the 
same  is  true  on  a  devise  of  land;  the  devisee  is  entitled  to 
timber,  fruit,  grass,  wheat,  corn,  tobacco,  etc.,  the  gift  of  the 
land  importing  a  gift  of  all  that  is  affixed  to  it.  West  v. 
Moore,  8  East.  339;  Bradner  v.  Faulkner,  34  N.  Y.  347; 
1  Lomax  Ex'ors,  420;  3  Eedfield  on  Wills,  154. 

But  when  the  owner  of  land  dies  intestate,  and  it  descends 
to  the  heir,  a  distinction  is  made  between  such  unsevered 
vegetable  products  as  are  raised  annually  by  cultivation  and 
labor  (fructus  industrial e s) ,  and  such  as  are  the  natural  pro- 
duce of  the  ground  {fructus  naturales).  The  former  class, 
called  emblements,  are  considered  personalty,  and  pass  to  the 
administrator,  while  the  latter  class,  those  not  emblements, 
are  regarded  as  part  of  the  realty,  and  go  with  the  land  to  the 
heir.  Emblements  may  be  defined  as  the  annual  results 
of  agricultural  labor;  i.  e.,  the  crops  which  repay  the  labor 
bestowed  upon  them  within  the  year,  and  they  belong  to 
the  administrator,  because  the  personal  estate  is  expended 
in  their  production,  and  should  therefore  be  increased  by 
their  value.  Accordingly,  crops  of  corn,  wheat,  and  other 
cereals,  potatoes  and  other  root  crops,  cotton,  hemp,  fiax, 
etc.,  are  emblements,  and  go  to  the  administrator;  while 
timber,  fruit  trees,  fruit,  grass,  clover,  etc.,  are  not  emble- 
ments, and  pass  to  the  heir.  (3  Eedf.,  Wills,  150-155;  4 
Lead.  Cases,  Eeal  Prop.,  517;  Tied.  Heal  Prop.,  §  71,  note  4.) 

rights  thereto  and  interests  therein,  other  than  a  chattel  interest; 
and  the  words  'personal  estate'  shall  include  chattels  real,  and 
such  other  estate  as  upon  the  death  of  the  owner  intestate  would 
devolve  upon  his  personal  representative" 


14  REAL    PROPERTY.  [Chap.  1 

But  on  a  devise  of  land,  as  we  have  seen,  the  devisee  is  entitled 
to  all  nnsevered  vegetable  products,  those  which  are  emble- 
ments, as  well  as  those  which  are  not.1  Dennet  v.  Hopkinson, 
63  Me.  350  (18  Am.  E.  227). 

§  12.  Mineral  Eights. — We  have  seen  that  the  ownership 
of  land  usually  extends  usque  ad  orcum;  i.  e.,  to  the  centre 
of  the  earth.  But  the  owner  of  land  may  divide  by  a 
horizontal  plane,  granting  the  surface  freehold,  while  he  re- 
tains the  substratum;  or  granting  the  substratum,  while  he 
retains  the  surface.  This  is  very  common  in  Pennsylvania 
and  other  mining  regions,  the  surface  right  being  in  one 
man,  and  the  mineral  right  in  another.  It  then  becomes 
important  to  ascertain  the  nature  of  the  mineral  right,  wheth- 
er it  is  to  be  regarded  as  corporeal  or  incorporeal;  for  if 
incorporeal,  it  can  pass  on  a  grant  of  the  land  to  which  it 
is  appurtenant,  as  we  have  seen  with  reference  to  easements 
and  profits  a  prendre  annexed  to  land;  but  if  corporeal,  the 
doctrine  is  that  land  cannot  be  appurtenant  to  land,  and 
if  not  parcel  thereof,  requires  a  separate  conveyance.  Again 
if  the  right  be  incorporeal,  it  is  said  to  be  indivisible;  but  if 
corporeal,  it  may  be  conveyed  in  parts  like  any  other  land. 
(25  Am.  D.  582";  72  Id.  760.) 

1  In  Shelton  v.  Shelton,  1  Wash.  (Va.)  53,  it  was  held  that,  un- 
der the  statute  then  in  force,  a  devise  of  land,  where  the  testator 
died  after  March  1,  would  not  pass  to  the  devisee  the  crops  nn- 
severed at  the  testator's  death,  unless  such  intent  was  manifested 
by  the  will.  And  see  Fleming  v.  Boiling,  3  Call.  75,  82,  explain- 
ing Shelton  v.  Shelton  as  a  case  under  the  statute,  and  admitting 
the  common  law  to  have  been  otherwise.  And  see  1  Lom.  Ex.  421, 
as  to  the  effect  of  the  Code  of  1849,  ch.  139,  §  2.  But  however  the 
law  may  have  been  formerly,  it  is  believed  that  now  in  Virginia 
a  devise  of  land  will  carry  the  emblements  to  the  devisee,  unless 
a  contrary  intention  is  expressed  in  the  will.  For  the  Code  of 
1887,  §  2806,  declares  that  "in  all  cases  the  right  to  emblements 
shall  be  as  at  common  law;"  and  by  the  common  law  a  devise  of 
land  to  A  gave  him  the  emblements.  And  see  Bradner  v.  Faulk- 
ner, 34  N.  Y.  347,  which  is  e  contra  to  Shelton  v.  Shelton  on  the 
construction  of  a  very  similar  statute. 


§§11-13]  CLASSES    OF    PROPERTY.  15 

It  is  now  settled  that,  if  the  grant  or  reservation  of  the 
right  to  dig  minerals  is  exclusive  and  unlimited  in  all  respects, 
it  will  be  regarded  as  carrying  the  entire  ownership  of  the 
ore  in  place  beneath  the  ground;  that  this  exclusive  and 
unlimited  right  to  take  minerals  is  equivalent  to  a  grant  or 
reservation  of  the  minerals  themselves,  and  constitutes  a 
corporeal  hereditament,  not  a  mere  privilege,  or  profit  a 
prendre;  but  on  the  other  hand,  if  the  right  to  take  the  min- 
erals be  not  exclusive,  so  that  the  grantor  may  dig  as  well 
as  the  grantee,  or  if  it  be  restricted  to  a  specified  quantity 
or  to  certain  purposes,  it  is  an  incorporeal  hereditament, 
because  it  is  not  a  grant  or  reservation  of  the  entire  owner- 
ship of  the  ore  beneath  the  grantor's  land.  See  Caldwell  v. 
Fulton,  31  Pa.  St.  475  (72  Am.  Dec.  760),  where  the  cases 
are  reviewed.  McClintoch  v.  Bnjden,  5  Cal.  97  (63  Am. 
Dec.  87,  and  monographic  note  at  101)  ;  B.  Co.  v.  Trimble, 
10  Wall.  367;  Reynolds  v.  Cool;  83  Ya.  817  (5  Am.  St.  R. 
317)  ;  Lee  v.  Bumgardner,  86  Ya.  315;  Barksdale  v.  Barker, 
Va.  Ct.  App.,  Dec.  1890;  15  Ya.  L.  J.  133);  List  v.  Cotts, 
4  W.  Ya.  543;  Williams  v.  Gibson,  84  Ala.  228  (5  Am.  St. 
B.  368.)  * 

§  13.  Incorporeal  Personalty. — The  division  of  property 
into  corporeal  and  incorporeal  applies  as  well  to  personalty 

1  License  to  take  Minerals. — In  Hodgson  v.  Perkins,  84  Va.  706, 
it  is  held  that  an  indenture  between  a  landowner  and  certain 
skilled  miners,  giving  them  the  privilege  of  digging  for  gold,  etc., 
on  the  former's  land,  and  to  hold  the  same  for  such  purpose,  and 
none  other,  so  long  as  they  may  deem  it  worth  while  to  search 
for  gold,  etc.,  creates  no  estate  in  the  land,  corporeal  or  incor- 
poreal, but  only  an  unassignable  license.  See,  too,  Barksclale  v. 
Hairston,  81  Va.  784,  where  a  mining  agreement  was  held  a  mere 
license,  and  revocable  at  the  will  of  the  licenser,  so  long  as  it  re- 
mained executory.  See  also  Hazleton  v.  Putnam,  3  Pinney  (Wis.) 
107  (54  Am.  D.  158);  Bush  v.  Sullivan,  3  G.  Greene  (Iowa),  334 
(54  Am.  D.  506);  Riddle  v.  Brown,  20  Ala.  412  (56  Am.  D.  202), 
for  the  distinction  between  a  license  and  an  incorporeal  heredit- 
ament. 


16  REAL    PROPERTY.  [Chap.  1 

as  to  realty.  Thus  goods  and  chattels  in  possession  are 
corporeal,  while  bonds,  notes,  and  other  money  rights  lying 
in  suit,  called  choses  in  action,  are  incorporeal.  As  to  stock 
in  jointstock  companies,  it  is  in  its  nature  incorporeal  per- 
sonal property,  even  in  the  case  of  railroad  and  other  internal 
improvement  companies  whose  operations  concern  land.  The 
reason  is  that  the  land  is  vested  in  the  ideal  person,  the  cor- 
poration, and  is  realty;  but  the  stock,  which  is  a  right  to 
share  in  the  dividends,  is  in  the  nature  of  a  chose  in  action, 
and  in  the  hands  of  the  stockholders  is  personalty.1  Angell 
&  Ames,  Corp.,  §  557. 

§  14.    Houses  Built  by  One  Man  on  the  Land  of  Another. — 

We  have  seen  that  a  house  erected  on  land  becomes  real 
property,  as  part  of  the  land.  And  this  rule  applies  at  com- 
mon law  even  when  A  erects  a  house  on  B's  land  under  a 
mistake  as  to  the  title;  the  house  still  becomes  a  part  of  the 
soil  and  the  property  of  B.  (4  Leading  Cases,  Beal  Prop., 
518.)  But  it  is  otherwise  where  A  erects  a  house  on  B's 
land  with  B's  permission,  and  with  the  understanding,  ex- 
press or  implied,  that  A  may  remove  it  at  pleasure.  The 
house  then  remains  the  property  of  A,  and  is  considered  per- 
sonal property.  Russell  v.  Richards,  11  Me.,  371  (26  Am. 
D.,  533)  ;  Curtis  v.  Hoyt,  19  Conn.,  154  (48  Am.  D.,  149)  ; 
Dame  v.  Dame,  38  N".  H.,  429  (75  Am.  D.,  195)  ;  Andrews 
v.  Auditor,  28  Gratt.  115. 

Questions  as  to  the  character  of  annexations  to  land  also 

1  Whether  the  stock  of  a  corporation  is  realty  or  personalty  is 
sometimes  settled  by  its  charter.  Thus  the  stock  of  the  old  "James 
River  Company"  (chartered  1784)  was  declared  to  be  real  estate. 
(11  Hen.  Stat.,  p.  455;  Revised  Code,  1S02,  p.  442.)  So  of  the 
stock  of  the  "Dismal  Swamp  Canal  Company,"  chartered  in  1787. 
(12  Hen.  Stat.,  484.)  So  in  England  as  to  New  River  shares. 
(Drybutter  v.  Bartholomew,  2  P.  Wms.,  127.)  In  Virginia  it  is  en- 
acted: "Shares  of  stock  shall  be  deemed  personal  estate,  and  as 
such  shall  pass  to  the  personal  representative  or  assignee  of  the 
stockholder."    (Code,  §  1125.) 


§§13,14]  CLASSES    OF    PROPERTY.  17 

arise  on  a  conveyance  or  mortgage  thereof ;  and,  on  the  death 
of  the  owner,  between  the  heir  and  administrator;  and  like- 
wise when  the  annexations  are  by  a  life  tenant  or  tenant  for 
years.  These  are  reserved  for  the  next  chapter,  to  be  con- 
sidered under  the  head  of  Fixtures. 


REAL    PROPERTY.  [Chap.  2 


CHAPTER    II. 

Fixtures. 

§  15.  Definition. — By  the  term  fixtures  are  denoted  those 
articles  which  were  chattels,  hut  which,  by  being  physically 
annexed  or  affixed  to  real  estate,  become  a  part  of,  and  ac- 
cessory to,  the  freehold,  and  the  property  of  the  owner  of 
the  land.  Hill  on  Fixtures,  §  1 ;  Taylor  on  Landl.  and  Ten- 
ant, §  544;  1  Wash,  on  Real  Prop.  (10) ;  3  Eedf.  Wills,  156; 
2  Devlin  on  Deeds,  §  1191,  and  n.  2;  Teaff  v.  Hewitt,  1 
Ohio  St.  511  (59  Am.  D.  634)  ;  Green  v.  Phillips,  26  Graft. 
752-'9  (21  Am.  E.  323). 

Fixtures  are  sometimes  defined  in  a  manner  precisely  the 
reverse  of  the  above,  viz.,  as  those  chattels,  which,  although 
physically  annexed  to  real  estate,  do  not  become  a  part  of, 
and  accessory  to,  the  freehold,  but  remain  chattels,  and  the 
personal  property  of  the  tenant,  or  other  person  by  whom 
they  are  so  annexed.  (2  Min.  Inst.  (3rd.  ed.)  604;  Sheen  v. 
Richie,  5  M.  &  W.  175,  per  Parke,  B. ;  Amos  &  Ferard, 
Fixtures,  2.) 

It  has  been  proposed  to  avoid  this  conflict  by  defining 
fixtures  as  "anything  annexed  to  the  freehold,"  without  refer- 
ence to  the  question  whether  realty  or  personalty,  whether 
removable  or  not  removable.  (2  Sm.  L.  C.  187,  note  to 
Elwes  v.  Maw;  1  Schouler  on  Pers.  Prop.  137;  Wms.  on 
Pers.  Prop.  13.) 

It  is  thought  best,  however,  to  adopt  the  definition  first 
given,  as  it  is  less  liable  to  confuse  than  the  others,  and  is 
recognized  hj  the  greater  number  of  decisions.1 

1  "The  term  fixture,  in  the  ordinary  signification,  is  expressive 
of  the  act  of  annexation,  and  denotes  the  change  which  has  oc- 
curred in  the  nature  and  legal  incidents  of  the  property;   and  it 

18 


§§  15-17]  FIXTURES.  19 

§  16.  Classification. — Questions  as  to  fixtures  may  arise,  as 
was  explained  by  Lord  Ellenborough  in  Elwes  v.  Maw,  3  East, 
38,  between — 

1.  Heir  and  executor. 

2.  Executor  of  a  tenant  for  life  and  the  remainderman  or 
reversioner. 

3.  Landlord  and  tenant. 

Let  us  consider  these  in  their  order. 

I.  Fixtures  between  the  Heir  and  the  Executor. 

§  17.  Introductory. — The  ancient  common  law,  regarding 
land  as  of  far  more  consequence  than  any  chattel  which  could 
be  affixed  to  it,  always  considered  everything  attached  to 
land  as  part  of  the  land  itself.  The  property  in  the  thing 
must  accede  to  that  in  the  land.  As  between  heir  and 
executor,  this  rule  benefited  the  heir,  who  has  been  a  great 
favorite  of  the  common  law  from  the  earliest  times.  And 
while  the  ancient  strictness  of  the  rule  as  to  fixtures  has  been 
greatly  relaxed  in  other  cases,  and  especially  as  between 
landlord  and  tenant,  yet  between  heir  and  executor  there 
has  been  but  little  change.  And  it  seems  reasonable  that 
whatever  is  once  annexed  to  the  freehold,  for  the  benefit 
of  the  inheritance,  and  for  purposes  connected  with  its 
use  and  enjoyment,  should  go  with  the  inheritance  to  the 
heir,  rather  than  that  the  inheritance  should  be  dismembered 
and  disfigured  in  order  to  increase  the  personal  estate. 

The  rule  as  laid  down  in  Sheppard's  Touchstone,  p.  470,  is 
that  the  executor  shall  not  have  the  "incidents  of  a  house," 
as  windows,  doors,  wainscot,  and  the  like;  that  they  shall 
not  be   "divided  and  sold  from  the  house."     "But  if  the 

appears  to  be  not  only  appropriate  but  necessary  to  distinguish 
this  class  of  property  from  movable  property  possessing  the  na- 
ture and  incidents  of  chattels.  It  is  in  this  sense  that  the  term 
is  used  in  far  the  greater  part  of  the  adjudicated  cases."  (Teaff 
v.  Hewitt,  supra.) 


20  REAL    PROPERTY.  [Chap.  2 

glass  be  from  the  windows,  or  there  be  wainscot  loose,  or 
doors  more  than  are  used  that  are  not  hanging,  or  the  like, 
these  things  shall  go  to  the  executor  or  administrator." 
See  Peck  v.  Batchelder,  40  Vt.,  233 ;  94  Am.  D.  392. 

From  the  above  extract,  and  also  from  the  definition  of 
fixtures,  it  will  be  seen  that  annexation  to  the  freehold  is 
considered  necessary.  It  has  been  said  that  to  constitute 
annexation  the  chattel  should  be  let  into  the  soil,  ■  or 
cemented  to,  or  otherwise  united  with,  something  previ- 
ously let  into  or  forming  part  of  the  soil;  and  that  simply 
laying  a  thing  upon  the  land  will  not  be  sufficient.  And 
that  if  a  chattel  is  kept  in  place  merely  by  the  force  of 
gravitation,  so  that  the  only  impediment  to  its  removal  is 
its  own  weight,  it  is  not  a  fixture.  Thus  a  barn  placed  on 
blocks  of  timber  lying  upon  the  ground,  but  not  let  in,  is 
not  a  fixture.  Culling  v.  Tuff  nail,  Bull.  1ST.  P.  34.  See 
3  Eedf.  Wills,  157.  So  a  gin-stand  not  attached  to  the  soil 
except  by  its  own  weight,  though  it  may  be  used  for  the 
purposes  of  the  farm,  is  not  a  part  of  the  realty,  Cole  v. 
Roach,  37  Texas,  412;  2  Dev.  Deeds,  §  1205.  Nor  is  a  saw- 
mill built  upon  timbers  lying  on  the  surface  of  the  ground. 
Brown  v.  Little,  6  Nev.  244.  And  in  Carlin  v.  Bitter,  68 
Md.  478  (6  Am.  St.  E.  467),  it  is  held  that  a  wooden 
structure  or  a  building  merely  resting  by  its  own  weight 
on  flat  stones  laid  upon  the  surface  of  the  ground,  and  hav- 
ing no  other  foundation,  is  not  a  fixture.  On  the  other 
hand,  in  Snedel'er  v.  Warring,  12  1ST.  Y.  170,  it  was  held 
that  a  colossal  statue  resting  by  its  own  weight  on  a  perma- 
nent pedestal,  was  a  fixture.  The  court  said:  "A  thing 
may  be  as  firmly  affixed  to  the  land  by  gravitation  as  by 
clamps  or  cement.  Its  character  may  depend  much  upon 
the  object  of  its  erection.  And  in  Massachusetts,  a  cistern 
sitting  against  the  wall  was  held  to  be  a  fixture.  Bainway  v. 
Cobb,  99  Mass.  457.  And  in  Cole  v.  Roach,  37  Texas, 
412,  it  is  said:  "Where  a  cistern  has  been  placed  against 
the  house  for  the  purpose  of  supplying  the  inmates  with 


§  17]  FIXTURES.  21 

water,  and  has  been  used  and  depended  upon  for  that  pur- 
pose, it  should  be  considered  as  part  of  the  realty  as  much 
as  the  key  to  the  door,  or  the  fence  around  the  yard  or  field." 
See  2  Dev.  Deeds,  §  1205,  n.  2. 

In  regard  also  to  the  method  of  annexation,  we  may  ob- 
serve that  some  things  which  come  within  the  rule  of  fix- 
tures are  very  slightly  annexed  to  the  freehold.  Thus  the 
doors,  windows,  shutters,  the  locks,  bolts  and  bars  of  a  house 
can  generally  be  removed  at  any  time  without  the  slight- 
est damage  to  the  freehold;  and  yet  these  are  fixtures. 
Heavy  articles,  on  the  other  hand,  like  mirrors,1  pictures, 
and  wardrobes,  though  strongly  fastened  to  the  wall  by 
screws,  are  mere  chattels.  "The  difficulty  is  somewhat 
increased,"  says  Chief  Justice  Shaw,  "when  the  question 
arises  with  respect  to  a  mill  or  manufactory,  when  the  parts 
are  often  so  arranged  and  adapted,  so  ingeniously  combined, 
as  to  be  occasionally  connected  or  disengaged,  as  the  ob- 
jects to  be  accomplished  may  require."  Winslow  v.  Ins.  Co., 
4  Met.  314  (38  Am.  D.  368)  ;  1  Schoul.  P.  P.  139. 

1  In  McKeage  v.  Ins.  Co.,  81  N.  Y.,  38  (37  Am.  R.  471),  it  is  said: 
"The  mirrors  were  not  set  in  the  walls,  but  were  put  up  after 
the  house  had  been  built,  being  supported  in  their  places  by- 
hooks  or  supports,  some  of  which  were  fastened  by  screws  to  the 
woodwork,  and  others  driven  into  the  walls,  and  were  capable 
of  being  easily  detached  from  these  supports,  without  interfering 
with  or  injuring  the  walls.  All  these  articles  were  in  their  nature 
mere  furniture,  and  therefore  chattels,  and  not  appurtenances  to 
the  building.  .  .  .  They  no  more  constitute  part  of  the 
realty  than  would  pictures  supported  by  fastenings  driven  into 
the  wall." 

But  it  does  not  follow  that  mirrors  may  not  be  so  fitted  to  a 
house  as  to  become  fixtures.  Thus  in  Ward  v.  Kilpatrick,  85  N. 
Y.  413  (39  Am.  R.  674),  mirror  frames  were  held  to  be  part  of 
the  realty.  The  court  said:  "The  mirror  frames  in  the  present 
case  were  actually  annexed  to  the  realty.  They  were  so  annexed 
during  the  process  of  building,  and  as  a  part  of  that  process. 
They  were  not  brought  as  furniture  into  the  completed  house, 
but  themselves  formed  part  of  such  completion.   Those  in  the  hall 


22  REAL    PROPERTY.  [Chap.  2 

§  18.  The  Criterion  of  a  Fixture. — The  difficulties  grow- 
ing out  of  the  test  of  annexation  have  led  judges  and  text- 
writers  to  seek  for  some  more  satisfactory  criterion.  Thus, 
in  some  of  the  authorities,  the  intention  of  the  party  mak- 
ing the  annexation  is  laid  down  as  the  true  test  of  a  fixture. 
Winslow  v.  Ins.  Co.,  supra,  2  Sm.  L.  C.  208.  Others  hold 
that  the  test  of  a  fixture  is  its  adaptation  to  the  use  and  pur- 
poses for  which  the  realty  is  appropriated,  however  slight 
its  physical  connection  with  it  may  be.  Voorhis  v.  Free- 
man, 2  Watts  &  S.  114  (37  Am.  D.  490) ;  Goffe  v.  O'Conner, 
16  111.  421 ;  Tabor  v.  Robinson,  36  Barb.  483. 

In  a  note  to  Minn.  Co.  v.  St.  Paul  Co.  2  Wall.  609,  646, 
it  is  said  that  in  the  United  States  there  are  three  different 
rules  as  to  annexation  established  in  different  States : 

1.  The  thing  must  be  so  fastened  to  the  estate  that  its 
removal  would  seriously  injure  the  freehold,  beyond  the 
loss  of  the  thing  removed. 

2.  If  the  chattel  is  essential  to  the  use  of  the  real  estate, 
and  actually  though  slightly  attached,  it  will  pass  with  the 
freehold. 

3.  If  the  thing  be  essential  to  the  use  of  the  real  estate, 
and  has  uniformly  been  used  with  it,  then  it  passes,  though 
not  fastened  to  it. 

§  19.  The  Doctrine  of  Teaff  v.  Hewitt. — In  Teaff  v;  Hew- 
itt, 1  Ohio  St.  511  (59  Am.  D.  634),  it  is  said,  in  an 
able  opinion  by  Bartley,  C.  J.,  that  "the  great  difficulty 
which  has  always  perplexed  investigation  upon  this  subject 

filled  up  and  occupied  a  gap  left  in  the  wainscoting.  They  were 
an  essential  part  of  the  inner  surface  of  the  hall,  and  of  a  ma- 
terial and  construction  to  correspond  with  and  properly  form 
part  of  such  inner  surface.  Those  in  the  parlor  fitted  into  a  gap 
purposely  left  in  the  baseboard.  Both  those  in  the  hall  and  those 
in  the  parlor  were  fastened  to  the  walls  with  hooks  and  screws. 
They  could  be  removed,  but  their  removal  would  leave  unfinished 
walls,  and  require  work  upon  the  house  to  supply  and  repair 
their  absence."  And  see  also  Mackie  v.  Smith,  5  La.  Ann.  717; 
52  Am.  D.  615. 


§§18,19]  FIXTURES.  23 

has  been  the  want  of  some  certain,  settled,  and  unvarying 
standard  by  which  it  could  be  determined  what  amounts  to 
a  fixture,  or  what  connection  with  the  land  will  deprive  a 
chattel  of  its  peculiar  legal  qualities  as  such,  and  make  it 
accessory  to  the  freehold."  And  the  learned  judge  con- 
cludes that  "the  united  application  of  the  following  requi- 
sites will  be  found  the  safest  criterion  of  a  fixture :  1 
Actual  annexation  to  the  realty,  or  something  appurtenant 
thereto;  2,  Appropriation  to  the  use  or  purpose  of  that  part 
of  the  realty  with  which  it  is  connected;  3,  The  intention 
of  the  party  making  the  annexation  to  make  the  article  a 
permanent  accession  to  the  freehold;  this  intention  being  in- 
ferred from  the  nature  of  the  article  affixed,  the  relation  and 
situation  of  the  party  making  the  annexation,  the  structure 
and  mode  of  annexation,  and  the  purpose  or  use  for  which 
the  annexation  has  been  made." 

This  criterion  of  a  fixture  seems  to  have  met  with  general 
approval.  See  14  Am.  D.  303,  note  to  Hunt  v.  Mullanphy, 
1  Mo.  508;  17  Am.  D.  695,  note  to  Gray  v.  Iloldship,  17  S. 
&  E.  413;  2  Dev.  Deeds,  §  1211;  1  Jones,  Mortgages,  §  429; 
Potter  v.  Cromwell,  40  N.  Y.  287  (100  Am.  D.  485)  ;  Rogers 
v.  Man,  Co.,  81  Ala.  483  (60  Am.  R.  171)  ;  Atchison,  &c,  R. 
Co.  v.  Morgan,  42  Kans.  23  (16  Am.  St.  E.  471)  ;  Green  v. 
Phillips,  26  Graft.  (Ya.)  752  (21  Am.  E.  323). » 

1  In  Ottumwa  Woolen  Co.  v.  Haivley,  44  Iowa,  57  (20  Am.  R. 
719,  724),  it  is  said:  "The  three  requisites  laid  down  in  the  case 
of  Teaff  v.  Hetoitt,  as  constituting  a  fixture,  it  is  said  must  all 
combine.  The  first,  being  physical  attachment,  all  the  cases  hold 
is  a  very  uncertain  and  unsatisfactory  criterion,  and  in  our 
opinion  the  only  value  to  be  attached  to  it  is  in  determining  the 
intention  of  the  owner  of  the  freehold  in  making  the  annexation. 
.  The  third  requisite,  being  the  intention  of  the  party 
making  the  annexation  to  make  a  permanent  accession  to  the 
freehold,  is  to  our  minds  the  controlling  consideration  in  deter- 
mining the  whole  question."  And  in  an  elaborate  note  to  Gray  v. 
Holclship,  17  Am.  D.  695,  it  is  said:  "The  decision  in  Teaff  v. 
Hewitt  satisfactorily  solves  the  whole  question  by  declaring  that 
the  degree  or  nature  of  annexation  to  the  soil  is  only  an  element  or 


24  REAL    PROPERTY.  [Chap.  2 

§  20.  Constructive  Annexation. — In  Wolford  v.  Baxter,  33 
Minn.  12  (53  Am.  E.  1),  the  law  is  thus  laid  down  by 
Mitchell;,  J. :  "While  not  agreeing  as  to  the  necessity  for  or 
the  degree  of  importance  to  be  attached  to  the  fact  of  actual 
physical  annexation,  yet  the  authorities  generally  unite  in 
holding  that  to  constitute  a  fixture  the  thing  must  be  of 
an  accessory  character,  and  must  be  in  some  way  in  actual  or 
constructive  union  with  the  principal  subject,  and  not  merely 
brought  upon  it;  that  in  determining  whether  an  article  is 
personal  property,  or  has  become  a  part  of  the  realty,  there 
should  be  considered  the  fact  and  character  of  annexation,  the 

circumstance  (and  even  a  subordinate  circumstance  tending  to 
throw  light  upon  the  more  material  inquiry  as  to  the  intent  in 
appropriating  the  chattel)  in  determining  whether  or  not  the 
chattel  has  become  a  fixture.  .  .  .  The  true  criterion  of  a 
fixture,  in  our  judgment,  is  the  united  application  of  the  follow- 
ing requisites:  1,  'Actual  annexation  to  the  realty  or  something 
appurtenant  thereto,'  with  this  modification,  that  the  annexation 
is  not  of  necessity  an  absolute  fastening,  or  a  continued  physical 
union  in  all  cases;  2,  'Application  to  the  use  or  purpose  to  which 
that  part  of  the  realty  with  which  it  is  connected  is  appropriated; 
3,  The  intention  of  the  party  making  the  annexation  to  make 
a  permanent  accession  to  the  freehold.'  The  requisite  of  intention 
is  the  most  important,  and  should  be  clearly  understood;  the 
word  'intention'  here  having  its  broad  and  comprehensive  signifi- 
cation, and  not  merely  implying  the  secret  action  of  the  mind  of 
the  owner  of  the  property.  The  owner  of  an  important  lot  might 
deposit  thereon  a  block  of  dressed  stone,  with  no  outward  indica- 
tion of  appropriation  to  any  use  in  connection  with  the  land, 
and  it  could  remain  a  chattel,  notwithstanding  some  secret  mental 
purpose  of  the  owner  that  it  should  be  and  remain  a  part  of  the 
soil,  and  this  even  though  the  stone  should  in  time  settle  par- 
tially into  the  earth;  but  if  the  owner  should  erect  a  building 
on  the  lot,  and  place  this  stone  upon  the  surface  of  the  ground 
in  front  of  a  door  in  such  a  manner  as  to  become  a  step  by  which 
to  reach  the  door  and  enter  the  house,  and  all  the  surrounding 
architecture,  etc.,  indicated  that  it  was  intended  for  permanent 
use  as  a  part  of  the  general  plan,  it  would  at  once  become  a  fix- 
ture, and  this,  although  the  owner  might  entertain  some  secret 
intention  of  taking  it  away  at  some  future  time." 


§  20]  FIXTURES.  25 

nature  of  the  thing  annexed,  the  adaptability  of  the  thing 
to  the  use  of  the  land,  the  intent  of  the  party  in  making 
the  annexation,  the  end  sought  by  annexation,  and  the 
relation  of  the  party  making  it  to  the  freehold.  These 
other  tests  named,  while  having  an  important  bearing  upon 
the  questions  whether  there  has  been  an  annexation,  and 
if  so  its  effect,  do  not,  however,  do  away  with  the  necessity 
of  annexation,  either  actual  or  constructive,  to  constitute  a 
fixture.  This  would  involve  a  contradiction  of  terms,  and 
wipe  out  the  fundamental  distinction  between  real  and  per- 
sonal property.  A  thing  may  be  said  to  be  constructively 
attached  when  it  has  been  annexed,  but  is  separated  for  a 
temporary  purpose,  as  in  the  case  of  a  mill-stone  removed 
for  the  purpose  of  being  dressed;  or  when  the  thing,  though 
never  physically  fixed,  is  an  essential  part  of  something 
which  is  fixed,  as  in  the  case  of  keys  to  a  door,  or  the  loose 
cover  of  a  kettle  set  in  brick  work.  It  is  perhaps  somewhat 
on  this  principle  that  the  permanent  and  stationary  ma- 
chinery in  a  structure  erected  especially  for  a  particular 
kind  of  manufacturing  has  been  held  fixtures,  although 
very  slightly  or  not  at  all  physically  connected  with  the 
building,  because  without  it  the  structure  would  not  be  com- 
plete for  the  purpose  for  which  it  was  erected.  Ponderous 
articles,  though  only  annexed  to  the  land  by  the  force  of 
gravitation,  if  placed  there  with  the  manifest  intent  that  they 
shall  permanently  remain,  may  be  fixtures."1  See  WadleigJi  v. 
Janvrin,  41  N.  H.  503  (77  Am.  D.  780);  Patton  v.  Moore, 
16  W.  Va.  428  (37  Am.  E.  789). 

1  The  learned  judge  further  says:  "It  has  often  been  remarked, 
that  the  law  of  'fixtures'  is  one  of  the  most  uncertain  titles  in 
the  entire  body  of  jurisprudence.  The  line  between  personal 
property  and  fixtures  is  often  so  close  and  so  nicely  drawn  that 
no  precise  and  fixed  rule  can  be  laid  down  to  control  all  cases. 
It  is  difficult,  if  not  impossible,  to  give  a  definition  of  the  term 
which  may  be  regarded  as  of  universal  application.  Each  case 
must  be  more  or  less  dependent  on  its  own  peculiar  facts. 
Whether  a  thing  is  a  fixture  or  not  has  been  sometimes  said  to 


26  REAL    PROPERTY.  [Chap.  2 

§  21.    Vendor  and  Vendee  and  Mortgagor  and  Mortgagee. 

— The  same  rule  as  to  fixtures  which  applies  in  favor  of  the 
heir,  as  between  heir  and  executor,  also  applies  in  favor  of 
the  vendee,  as  between  vendor  and  vendee;  and  in  favor  of 
the  mortgagee,  as  between  mortgagor  and  mortgagee,  and 
this  although  the  chattels  were  annexed  to  the  land  after 
the  mortgage  was  made.  And  the  same  rule  applies  between 
a  debtor  and  an  execution  debtor,  and  as  to  what  is  a 
part  of  the  freehold  and  so  subject  to  the  mechanic's  lien  law. 
Gray  v.  Holdship,  17  S.  &  E.  413  (17  Am.  D.  680)  ;  Ward 
v.  Kilpatrick,  85  N".  Y.  413  (39  Am.  E.  674).  Hill,  Fixtures, 
§  60 ;  Wms.  Pers.  Prop.  16,  note ;  Voorhis  v.  Freeman,  2  W. 
&  S.  116  (37  Am.  D.  490)  ;  Witmer's  Appeal,  45  Pa.  St.  455 
(84  Am.  D.  505)  ;  James  v.  R.  Co.,  6  Wall.  750;  Cullwich  v. 
Swindell,  L.  E.  3  Bq.  249;  2  Dev.  Deeds  §  1193;  1  Jones  on 
Mortgages,  §  428  et  seq. 

§  22.  Examples  of  Fixtures. — Machinery. — A  number  of 
illustrations  of  what  are  or  are  not  considered  fixtures  as 
between  the  heir  and  the  executor  have  already  been  given. 
The  rule  is  the  same,  as  we  have  seen,  as  between  vendor 
and  vendee,  and  mortgagor  and  mortgagee;  and  the  cases 
deciding  what  shall  pass  under  a  sale  or  mortgage  are  very 
numerous.  For  full  information,  reference  is  made  to  2 
Devlin  on  Deeds,  §§  1191-1230;  1  Jones  on  Mortgages, 
§§  428-456.  It  is  practicable  here  to  give  a  few  instances 
only. 

1.  Machinery  in  Mills  and  Factories. — The  cases  on  this 
subject  are  said  to  be  in  irreconcilable  conflict.  The  diversity 
of  decisions  springs,  no  doubt,  from  the  varying  degrees  of 

be  a  question  partly  of  law  and  partly  of  fact."  See  as  to  defini- 
tion and  test  of  fixtures,  37  Am.  D.  494;  59  Id.  657;  62  Id.  69; 
64  Id.  64;  77  Id.  780;  79  Id.  511;  83  Id.  475,  668;  85  Id.  747;  91 
Id.  209;  92  Id.  243,  741;   100  Id.  485;  1  Am.  Rep.  372;  26  Id.  286; 

27  Id.  310;  49  Id.  152;  60  Id.  171;  13  Am.  St.  R.  147;  16  Id.  471; 
18  Id.  903;  19  Id.  598;  21  Id.  231;  22  Id.  373. 


§§  21, 22]  FIXTURES.  27 

importance  attached  by  different  courts  to  the  several  req- 
uisites for  a  fixture,  as  laid  down  in  Teaff  v.  Hewitt,  supra. 
Thus,  if  the  mode  of  annexation  is  chiefly  considered,  one 
result  is  reached;  if  the  intention  of  the  owner  to  make  a 
permanent  accession  to  the  freehold  is  magnified,  a  con- 
trary conclusion  is  arrived  at.  In  1  Jones  on  Mortgages, 
§  444,  it  is  said:  "There  is  no  certain  criterion  by  which  to 
determine  in  all  cases  what  belongs  to  the  one  class,  and 
what  to  the  other.  Different  courts  decide  differently  in  re- 
gard to  the  same  articles ;  and  even  the  decisions  of  the  same 
court  do  not  always  seem  to  be  perfectly  consistent.  The 
varying  circumstances  of  the  cases  seem  sometimes  to  have 
an  immediate  influence  upon  the  determination  of  the  courts 
greater  than  the  statement  of  them  in  the  reports  would  seem 
to  warrant."  And  Mr.  Devlin  says:  "Perhaps  the  only  rule 
that  can  be  evolved  from  the  mass  of  conflicting  decisions  is, 
that  whether  an  article  is  a  fixture  or  not  must  depend  upon 
the  combination  of  several  tests,  any  one  of  which  alone  is 
not  conclusive/'  He  then  gives  the  three  requisites  laid  down 
in  Teaff  v.  Hewitt,  and  adds  that  the  presumption,  in  case 
of  doubt,  is  that,  as  the  interest  of  the  vendor  of  real 
estate  is  permanent,  all  annexations  that  he  has  made  are  for 
his  prolonged  enjoyment,  and  for  the  substantial  and  con- 
tinued enhancement  in  value  of  the  property;  and  that  the 
majority  of  the  decisions  consider  everything  which  has  been 
attached  to  the  realty  for  the  purpose  of  adding  to  its  value 
as  a  fixture,  passing  with  a  conveyance  of  the  land.  2  Dev. 
Deeds,  §§  1211,  1212. 

In  Green  v.  Phillips,  26  Graft.  762,  it  is  said:  "The  true 
rule  deduced  from  all  the  authorities  seems  to  be  this: 
That  where  the  machinery  is  permanent  in  its  character, 
and  essential  to  the  purposes  for  which  the  building  is  occu- 
pied, it  must  be  regarded  as  realty,  and  passes  with  the 
building;  and  that  whatever  is  essential  for  the  purpose  for 
which  the  building  is  used  will  be  considered  as  a  fixture, 
although  the  connection  between  them  is  such  that  it  may 


28  REAL    PROPERTY.  [Chap.  2 

be  severed  without  physical  or  lasting  injury  to  either." 
See  this  rule  approved  in  Patton  v.  Moore,  16  W.  Va.  428 
(37  Am.  E.  789) ;  Fratt  v.  Whittier,  58  Cal.  126  (11  Am.  E. 
251). » 

1  The  following  are  instances  of  machinery  held  a  fixture  as  be 
tween  vendor  and  vendee,  or  mortgagor  and  mortgagee:  Mill 
chains,  dogs,  and  bars  in  a  saw-mill.  Farrar  v.  Stackpole,  6  Greenl 
(Me.)  154  (19  Am.  D.  201).  A  gin-mill,  erected  in  the  gin-house 
and  fastened  to  it  by  nails  and  braces.  Degraffenreicl  v.  Scruggs 
4  Humph.  (Tenn.)  451  (40  Am.  D.  658).  A  boiler  set  in  brick 
work,  and  not  removable  without  taking  down  brick-work,  and 
steam-engine  annexed  by  being  bolted  to  granite  block.  Richard- 
son v.  Copelancl,  6  Gray  (Mass.)  536  (66  Am.  D.  424).  Machinery 
of  a  sash  and  blind  factory,  without  which  it  cannot  be  operated, 
and  attached  to  the  mill  by  spikes,  nails,  bolts,  and  screws,  and 
operated  by  belts  running  upon  permanent  horizontal  shafting, 
driven  by  a  water-wheel  under  the  mill.  Symonds  v.  Harris,  51 
Me.  14  (81  Am.  D.  553).  Steam-engine  and  boiler,  attached  to  the 
freehold,  and  furnishing  the  motive  power  for  mill  machinery. 
Sweetzer  v.  Jones,  35  Vt.  317  (82  Am.  D.  639).  Machinery  for 
tool-making,  when  annexed  to  the  freehold  by  being  attached  with 
bolts  to  a  block  set  in  the  ground,  and  with  screws  and  bolts  to 
a  building.  McLaughlin  v.  Nash,  14  Allen  (Mass.)  136  (92  Am. 
D.  741).  A  steam-engine,  moulding  and  planing  machines,  at- 
tached to  a  sash,  blind,  and  door  factory.  Green  v.  Phillips,  26 
Gratt.  752  (21  Am.  R.  323).  The  engine  in  a  woolen  mill  by  which 
the  machinery  was  propelled,  and  the  shafting,  pulleys,  and  belts, 
and  the  carders,  spinning  jacks,  and  looms,  although  only  at- 
tached to  the  building  by  cleats  or  screws  to  keep  them  in  place. 
Ottumioa,  dc,  Co.  v.  Hawley,  44  la.  57  (24  Am.  R.  719).  Machin- 
ery used  in  canning  business,  when  parts  of  it  are  annexed  to  the 
soil,  and  the  other  parts  are  necessary  to  the  use  of  the  parts  so 
attached.  Dudley  v.  Hurst,  67  Md.  44  (1  Am.  St.  R.  368).  Ma- 
chinery, shafting,  rollers,  &c,  constituting  a  marine  railway. 
Tyson  v.  Post,  108  N.  Y.  217  (2  Am.  St.  R.  409).  A  steam-boiler 
and  looms  used  in  a  mill  as  necessary  parts  of  the  machinery 
thereof,  though  held  in  position  merely  by  their  own  weight. 
Cavis  v.  Beckford,  62  N.  H.  229  (13  Am.  St.  R.  554).  Heavy  ma- 
chinery procured  for  use  in  manufacturing  cloth,  and  placed  in 
a  mortgaged  cotton  mill,  and  attached  to  the  building  by  being 
fastened  to  the  floor,  and  connected  with  the  motive  power,  with 


§§22,23]  FIXTURES.  29 

§  23. — 2.  Soiling  Stock  of  Railways. — The  locomotives 
and  ears  of  a  railroad  have  been  held  fixtures  in  some  cases, 
on  the  ground  that  they  are  annexed  to  the  rails,  and  are 
adapted  and  appropriated  to  the  use  of  the  road,  and  essen- 
tial to  its  working.  But  the  later  authorities  are  to  the  con- 
trary. See  1  Jones  on  Mortgages,  §  452,  where  the  cases  are 
collected,  and  the  conclusion  reached  "that  while  there  are 
many  and  strong  arguments  for  holding  that  rolling  stock 
is  a  part  of  the  realty  of  a  railroad — and  this  view  has  the 
support  of  the  United  States  courts — the  weight  of  authority 
in  the  state  courts  seems  to  be  against  that  position."  See 
Palmer  v.  Forbes,  23  111.  300;  Pennoch  v.  Coe,  23  How. 
117;  Strickland  v.  Parker,  51  Me.  263;  Farmers'  Loan,  &c. 
v.  Bank,  11  Wise.  207;  Phillips  v.  Winslow,  18  B.  Monroe, 
431  (68  Am.  D.  679);  Minn.  Co.  v.  St  Paul  Co.,  2  Wall. 
609,  and  note.  The  following  cases  hold  rolling  stock  to 
be  personal  property,  Sangamon,  &c.  E.  Co.  v.  County  of 
Morgan,  14  111.  163  (56  Am.  D.  497) ;  Coe  v.  Columbus  &c. 

a  view  to  permanence,  and  to  be  used  with  the  building  until 
worn  out.  Hopewell  Mills  v.  Bank,  150  Mass.  519  (15  Am.  St.  R. 
235).  Saw-mill,  and  engine  and  boiler  connected  with  and  used 
to  operate  it,  all  attached  to  the  land  in  the  usual  way.  Home  v. 
Smith,  105  N.  C,  322  (18  Am.  St.  R.  903). 

On  the  other  hand,  there  are  cases  in  which  machinery  in  a 
mill  or  factory  is  held  not  to  be  a  fixture,  sometimes  for  want  of 
annexation,  and  sometimes  for  want  of  sufficient  annexation.  Thus 
in  HuVoell  v.  Bank,  132  Mass.  447  (42  Am.  R.  446),  it  was  held 
that  heavy  machines  in  a  factory,  steadied  by  being  screwed  to 
the  floor,  but  removable  without  injury  to  the  building  and  use- 
ful elsewhere,  are  not  fixtures  within  a  mortgage  of  the  land. 
And  in  Teaff  v.  Hewitt,  supra,  it  was  held  that  machinery  in  a  fac- 
tory is  not  a  fixture  v/here  it  is  connected  with  the  motive  power 
by  means  of  bands  and  straps,  and  attached  to  the  building  only 
so  far  as  to  confine  the  different  parts  in  their  proper  places  for 
use,  and  is  subject  to  removal  as  the  interest  of  business  or  con- 
venience may  require,  without  injury  to  the  machinery  itself  or 
the  building.  And  in  Devlin  on  Deeds,  §  1214,  this  is  said  to  be 
the  general  American  doctrine,  though  there  are  many  cases  to 
the  contrary. 


30  REAL    PROPERTY.  [Chap.  2 

R.  Co.,  10  Ohio  St.  372  (75  Am.  D.  518) ;  Chicago,  &c.  R.  Co. 
y.  Ft.  Howard,  21  Wise.  44  (91  Am.  D.  458) ;  Randall  v.  El- 
ivell,  52  N.  Y.  521  (11  Am.  E.  747);  Hoyle  v.  Pittsburgh, 
&c.  R.  Co.,  54  N.  Y.  314  (13  Am.  B.  595).  In  many  of  the 
States  mortgages  of  rolling  stock  are  regulated  by  statute.  In 
some  rolling  stock  is  declared  personal  property  by  con- 
stitutional provision.  See  1  Jones  Mortgages,  §  452,  and 
notes. 

§  24. — 3.  Miscellaneous  Fixtures. — Gas-fixtures. — These 
consist  of  burners,  brackets,  and  chandeliers,  attached  to 
gas-pipes,  from  which  they  may  be  removed  without  injury 
to  the  building.  By  the  weight  of  authority  they  are  but 
chattels,  and  do  not  pass  by  a  deed  of  the  premises.  On 
principle,  it  would  seem  that  such  appendages  to  gas-pipes 
are  true  fixtures,  and  this  view  is  vigorously  maintained  in 
note  to  Gray  v.  Holdship,  17  Am.  Dec.  691,  where  the 
cases  are  reviewed.  See  2  Dev.  Deeds,  §  1225;  McKeage 
v.  Ins.  Co.,  81  jNT.  Y.  38.  Stoves  are  not  usually  fixtures, 
but  they  become  so  when  they  are  so  surrounded  by  the 
brick-work  of  the  chimney  that  it  is  necessary  to  take  it 
down  in  order  to  remove  them.  See  42  Am.  Eep.  note; 
Blethen  v.  Towle,  40  Me.  310;  Goddard  v.  Chase,  7  Mass., 
432.  Furnaces  may  or  may  not  be  fixtures,  according  to 
the  mode  of  connection  with  the  building  and  facility  of-  re- 
moval. See  1  Jones,  Mortgages,  §  433  a;  42  Am.  Eep. 
note;  Mather  v.  Fraser,  2  Kay  &  J.  536;  Raluvay  Sav.  Ins. 
v.  Baptist  Church,  36  N.  J.  Eq.  61.  Manure  made  in  the 
ordinary  course  of  husbandry  upon  a  farm  is  a  fixture,  and 
passes  by  a  deed  of  mortgage.  But  this  doctrine  does  not 
apply  to  manure  made  in  a  livery  stable.  Wetherbee  v. 
Ellison,  10  Vt.  379 ;  Proctor  v.  Gilson,  49  N.  H.  62.  A  worm 
fence  is  a  fixture.  Climer  v.  Wallace,  28  Mo.  556  (75 
Am.  D.  135);  Mott  v.  Palmer,  1  N".  Y.  564.  Hop-poles 
are  held  fixtures  not  only  while  in  use  but  also  while  piled 
upon  the  premises  awaiting  use  the  next  season.  Bishop 
v.  Bishop,  11  N.  Y.  123   (62  Am.  D.  68).     An  organ  is  a 


§§  22-25]  FIXTURES.  31 

fixture  in  a  recess  in  a  church,  if  the  space  was  left  in  the 
building  of  the  church  exclusively  for  the  organ,  so  that  the 
edifice  was  left  incomplete  and  unfinished  until  the  organ 
was  put  into  position.  Rogers  v.  Crow,  40  Mo.  91  (93  Am. 
D.  299).  A  lathing  tub  and  lead  water-pipes  fastened  to 
the  walls  and  floor  of  a  building  by  nailing  are  fixtures. 
Cohen  v.  Kyler,  27  Mo.  122.  A  hotel  sign  may  be  a  fixture. 
Redlon  v.  Barker,  4  Kans.  382  (96  Am.  D.  180).  A  church 
hell  is  a  fixture.  Cong.  Soc.  v.  Fleming,  11  la.  533  (79  Am. 
D.  511). 

II.  Fixtures  between  the  Executor  of  a  Tenant  for  Life  and 
the  Remainderman  or  Reversioner. 

§  25. — Rule  Eelaxed  in  Favor  of  the  Executor. — The  strict 
common  law  as  to  fixtures  is  somewhat  relaxed,  in  this 
case  in  favor  of  the  executor,  who  may,  therefore,  claim 
against  the  reversioner  things  which  he  cannot  claim  against 
the  heir.  For  example,  a  steam  or  fire  engine  erected  in  a 
colliery  will  go  as  assets  to  the  executor  of  a  life  tenant. 
Dudley  v.  Warde,  Ambl.  113;  Lawton  v.  Lawton,  3  Atk.  13. 
And  in  Estate  of  Hinds,  5  Whart.  (Pa.)  138,  (34  Am.  Dec. 
542),  it  was  held  that  a  steam  engine  erected  bya  tenant  for 
life,  for  the  purpose  of  carrying  on  a  trade,  may  be  removed 
after  his  death  by  his  representative.  The  favor  shown  the 
executor  is  intended  to  encourage  tenants  for  life  to  carry  on 
trades  and  mining  operations,  and  to  provide  suitable  machin- 
ery therefor.  But  the  extent  to  which  the  law  favors 
the  executor  in  this  case  is  not  well  settled,  as  few  cases 
have  come  before  the  courts.  It  may  be  doubted  whether  the 
executor  would  be  allowed  to  remove  any  ornamental  fixtures, 
or,  in  England  at  least,  those  intended  for  agricultural 
purposes.  And  even  as  to  trade  fixtures,  it  is  said  that  the 
right  or  removal  will  be  limited  to  such  as  are  erected  for 
the  purposes  of  trade  proper,  and  will  not  be  extended  to 
occupations  having  merely  an  affinity  or  resemblance  to  trade. 
See  2  Sm.  Lead.  Cas.  246;  1  Schoul.  Pers.  Prop.  144;  1  Lead. 


32  REAL    PROPERTY.  [Chap.  2 

Cas.  Real  Prop.  (Sharsw.  &  Budd),  208;  D'Eyncourt  v.  Greg- 
ory, L.  Xi.  3  Eq.  380.  And  it  is  said  that  a  tenant  for  life 
or  his  representative  cannot  remove  buildings  of  a  perma- 
nent character;  and  that  it  is  presumed  that  improvements 
put  on  the  property  by  life  tenants  are  designed,  not  for  the 
temporary  use  of  such  tenants,  but  as  permanent  additions. 
Cannon  v.  Hare,  1  Tenn.  eh.  22,  per  Cooper,  C. 

III.  Fixtures  between  Landlord  and  Tenant. 

§  26.  General  Principles. — The  law  in  this  case,  in  order 
to  promote  industry  and  encourage  trade,  is  exceedingly 
liberal  to  the  tenant.  In  fact,  the  ancient  rule  that  chattels 
affixed  to  the  freehold  cannot  be  removed,  has  hardly  any 
application  at  all,  provided  the  appendages  are  for  the 
benefit  of  trade;  and  in  the  United  States,  the  tendency  is 
to  put  agricultural  fixtures  upon  the  same  footing.  Public 
policy,  especially  in  this  country,  requires  that  the  tenant 
should  be  permitted  so  to  use  the  premises  he  occupies 
as  to  derive  the  greatest  amount  of  profit  and  comfort  con- 
sistent with  the  rights  of  the  owner  of  the  freehold.  It  is 
obvious  that  the  rule  which  obtains  where  the  owner  of 
land  makes  annexations  thereto,  should  not  be  applied  to 
tenants  with  a  mere  temporary  interest.  Their  erections 
can  hardly  be  intended  to  enhance  the  value  of  the  inher- 
itance, and  to  be  permanent  accessions  to  the  freehold; 
and  to  refuse  them  permission  to  remove  chattels  affixed 
during  the  term  for  purposes  of  trade,  manufacture,  or  do- 
mestic purposes,  would  be  unreasonable  and  unjust.  See 
Taylor  Landlord  &  Ten.  §§  545-555;  2  Dev.  Deeds,  §  1193; 
2  Lead.  Cas.  Eeal  Prop.  96-99;  Wall  v.  Hinds,  4  Gray 
(Mass.),  256  (64  Am.  Dec.  64)  ;  Lacey  v.  Giboney,  36  Mo. 
320  (88  Am.  Dec.  145)  ;  Conrad  v.  Mining  Co.  54  Mich. 
249  (52  Am.  E.  817). 


§§  25-27]  FIXTURES.  33 

§  27. — What  Erections  Kemovable. — 1.  Trade  Fixtures.1 — 
It  is  well  settled  that  whatever  erections  or  additions  a  ten- 
ant makes  for  the  purposes  of  trade,  even  though  affixed  to 
the  soil  or  building,  remain  chattels,  and  are  removable  by 
the  tenant;  and  so  completely  are  they  considered  the  prop- 
erty of  the  tenant,  that  they  may  be  levied  on  and  sold, 
under  an  execution  against  him,  as  his  goods  and  chattels, 
and  on  his  death,  they  will  go  to  his  personal  represent- 
ative. 

As  to  what  are  trade  fixtures,  this  will  of  course  vary 
with  the  nature  of  the  business.  In  Seeger  v.  Pettit,  77  Pa. 
St.  437  (18  Am.  E.  453),  a  tenant  in  trade  was  allowed  to 
remove  a  coal  bin,  gas  fixtures,  stairway  and  banisters, 
oloset,  platform  scales,  etc.  And  in  Carlin  v.  Bitter,  68 
Md.  478  (6  Am.  St.  E.  467),  the  following  were  held  trade- 
fixtures  when  erected  by  the  tenant  of  a  hotel :  A  bake- 
house and  oven,  the  fountain  in  the  yard,  the  awning  in 
front  of  the  house,  the  furnace  in  the  cellar  for  heating  the 
building,  the  wash-tubs  in  the  laundry,  the  grates  for  burn- 
ing coal  fastened  into  the  fire  places  in  the  rooms,  the  in- 
side shutters  to  the  windows,  the  counter  in  the  office  rooms, 
the  counter  and  shelving  in  the  cigar  store,  the  counter, 
shelving,  and  mirrors  in  the  bar-room  (the  mirrors  being 
glasses  framed  and  fastened  into  panels  made  in  the  wall, 
and  not  merely  framed  mirrors  hung  on  hooks),  the  shelving 
in    the    pantry    store-room,    and    the    inside    iron    doors    in 

1  It  will  be  observed  that  the  term  "Trade  Fixtures"  describes 
chattels  which,  although  annexed  to  the  land  by  the  tenant,  do 
not  become  part  of  the  freehold,  but  are  removable  by  the  tenant. 
The  same  is  true  of  the  term  "Domestic  Fixtures,"  and  in  some 
of  our  States  of  "Agricultural  Fixtures."  This  use  of  the  word 
"fixture"  is  contrary  to  the  definition  adopted  in  §  15,  supra; 
but  the  above  expressions  are  too  well  established  to  be  altered 
or  ignored.  The  student  must  remember,  however,  that  in  them 
the  word  "fixture"  means  no  more  than  a  chattel  annexed  to  the 
soil  or  building,  and  does  not  imply  that  it  has  ceased  to  be  re- 
movable, and  become  part  of  the  freehold. 


34  REAL    PROPERTY.  [Chap.  2 

the  stable.  And  in  Van  Ness  v.  Packard,  2  Pet.  137;  it 
was  held  that  a  tenant  was  not  liable  for  waste  for  pulling 
down  and  removing  a  wooden  dwelling-house,  with  a  stone 
cellar  and  brick  chimney,  which  he  erected  upon  a  lot  of 
land  he  had  rented  for  a  term  of  years,  for  the  purpose  of 
carrying  on  the  business  of  a  dairyman,  and  for  the  residence 
of  his  family  and  servants  engaged  in  the  business.  The 
principle  has  been  held  to  extend  to  gardeners  and  nursery- 
men, who  are  considered  tradesmen,  and  who  may  take  away 
from  leased  premises  their  green-houses  and  hot-houses, 
and  all  trees,  shrubbery,  etc.,  planted  for  the  purposes  of 
sale.     Tayl.  L.  &  T.,  §  546.1 

§  28.  2.  Domestic  Fixtures. — A  tenant  is  also  allowed  to 
disannex  and  take  away  what  are  called  domestic  fixtures, 
i.  e.,  such  as  he  puts  up  for  ornament  and  the  more  conve- 
nient use  of  the  premises.  Under  this  class  come  bells, 
bell-pulls,  gas-fixtures,  wainscots,  marble  chimney-pieces 
grates,  etc.  It  is  manifest  that  the  same  article  may  be  a 
trade  or  domestic  fixture,  according  as  the  building  is  oc- 
cupied for  business  or  for  residence  purposes  only.  Thus  in 
Wall  v.  Hinds,  4  Gray  (Mass.)  256  (64  Am.  D.  64),  the 
premises  were  leased  for  a  tavern  and  boarding-house.  The 
tenant  put  in  a  water-tank  and  sinks,  fastened  to  the  build- 
ing by  nails,  or  fitted  to  the  floor  by  cutting  away  flooring; 
and  also  extended  gas  and  water-pipes  through  the  buildings, 
passing  through  holes  in  floors,  ceilings  and  partitions  cut 
for   the   purpose,    and   kept   in    place    by   hooks    and    metal 

1  But  as  between  vendor  and  vendee,  mortgagor  and  mortgagee, 
nursery  stock  is  a  fixture,  and  will  pass  on  sale  or  mortgage. 
And  if  a  person  occupies  land  as  a  tenant,  but  is  merely  a  farmer, 
and  not  a  professional  nurseryman  or  gardener,  be  cannot  carry 
away  young  fruit  trees  raised  on  tbe  demised  premises  for  the 
purpose  of  planting  in  his  garden  or  orchard.  Coombs  v.  Jordan, 
3  Bland's  Ch.  284  (22  Am.  D.  236);  Smith  v.  Price,  39  111.  28  (89 
Am.  D.  284);  Kelly  v.  Austin,  46  111.  156  (92  Am.  D.  243);  Hol- 
J)rook  v.  Chamberlin,  116  Mass.  155  (17  Am.  R.  146);  Adams  v. 
Beadle,  47  la.  439  (29  Am.  R.  487). 


§§28,29]  FIXTURES.  35 

bands;  the  building  having  previously  been  supplied  with 
water  and  light  by  other  means.  He  was  allowed  to  remove 
all  these  articles,  the  court  saying  that  they  were  "of  a 
mixed  nature,  and  might  well  be  regarded  as  combining 
the  qualities  of  both  domestic  and  trade  fixtures." 

But  all  domestic  fixtures  are  not  removable  by  a  tenant. 
The  exceptions  grow  out  of  the  mode  of  annexation,  and 
the  fact  that  the  article  is  necessary  for  the  completion  of 
the  building,  as  well  as  for  the  comfort  and  enjoyment  of  the 
tenant  in  its  use.  In  such  case,  the  chattel  is  considered  as 
irrevocably  appropriated  to  the  building,  being  affixed  per- 
petui  usus  causa,  or  as  it  is  sometimes  expressed,  pom-  un 
profit  del  inheritance.  In  this  class  of  irremovable  domestic 
fixtures,  Mr.  Taylor  ranks  hearthstones,  doors,  windows, 
locks  and  keys,  etc.  See  Taylor  L.  &  T.  §  547.  Wall  v. 
Hinds,  supra. 

§  29. — 3.  Agricultural  Fixtures. — As  to  buildings,  out- 
houses, etc.,  which  have  been  erected  for  agricultural  pur- 
poses, it  has  been  held  in  England  that  they  are  fixtures 
which  the  tenant  cannot  remove.  This  was  decided  in  the 
leading  case  of  Elwes  v.  Maw,  supra.  There  the  tenant  of 
a  farm,  under  a  lease  for  twenty-one  years,  was  held  liable 
for  waste  for  removing  a  beast-house,  a  carpenter's  shop,  a 
wagon-house,  a  fuel-house,  etc.,  which  he  had  erected.  The 
ground  of  the  decision  was  that  these  were  not  trade  fix- 
tures. But  the  tendency  in  the  United  States  is  to  make 
no  distinction  between  trade  and  agricultural  fixtures,  but 
to  allow  the  removal  of  both.  See  Van  Ness  v.  Packard,  "3 
Pet.  137,  per  Story,  J.;  Whiting  v.  Brastoiv,  4  Pick.  310. 
And  in  Alabama  it  was  held  that  the  common  law  rule  as 
to  agricultural  fixtures,  as  laid  down  in  Elwes  v.  Maw,  was 
inapplicable  in  that  State;  and  that  agricultural  fixtures 
erected  by  tenants  should  receive  the  same  protection  in  favor 
of  the  tenant  as  fixtures  made  for  the  purposes  of  trade. 
Harkness  v.  Sears,  26  Ala.  493  (62  Am.  D.  742).  But  in 
Xew  York  the  Court  of  Appeals  refused  to  sanction  a  de- 


36  REAL    PROPERTY.  [Chap.  2 

parture  from  the  English  rule.     Onibony  v.  Jones,  19  N".  Y. 

234:. 

§  30. — Manure. — We  have  seen  that  manure  made  in  the 
ordinary  course  of  husbandry  on  agricultural  land  is  a  fix- 
ture, and  passes  to  a  vendee  or  mortgagee.  Kittridge  v. 
Woods,  3  N".  H.  503  (14  Am.  D.  393).  And  this  too  though 
the  manure  is  not  spread  on  the  ground,  but  is  lying  in  the 
barnyard,  though  there  is  one  case  to  the  contrary.  Ruck- 
man  v.  Outwater,  28  N".  J.  Law  581.  But  not  only  is  ma- 
nure a  fixture  as  between  vendor  and  vendee,  etc.,  but  the 
same  doctrine  applies  even  as  between  landlord  and  tenant; 
and  manure  made  on  a  farm  occupied  by  a  tenant,  consist- 
ing of  the  collections  from  the  stable,  etc.,  is  considered  so 
inseparably  annexed  to  the  freehold  that  it  cannot  be  re- 
moved by  the  tenant  at  the  end  of  his  term.  See  Tayl.  L. 
&  T.  §  541;  14  Am.  Dec.  397,  note  to  Kittridge  v.  Wood, 
supra,  citing  many  cases.  But  in  one  case,  Sniitluvick  v. 
Ellison,  2  Ired.  Law  (N~.  C.)  326  (38  Am.  D.  697),  it  is  held 
that  an  outgoing  tenant  may  remove  the  manure  made  by 
him  during  the  term,  if  he  does  so  before  its  expiration.  And 
everywhere  manure  made  in  a  livery  stable  belongs  to  the 
tenant.  See  Tyler,  Fixtures,  §  356.  Daniels  v.  Pond,  21 
Pick.  (Mass.)  367  (32  Am.  D.  269)  ;  Lewis  v.  Jones,  17  Pa. 
St.  262  (55  Am.  D.  550)  ;  Chase  v.  Wingate,  68  Me.  204-  (28 
Am.  B.  36,  and  note).1 

1  Manure. — Code  Virginia,  §  2779,  enacts:  "If  a  tenant  at  will 
or  for  years,  without  special  license  so  to  do,  remove  by  sale  or 
otherwise  from  the  leased  premises,  manure  made  thereon  in  the 
ordinary  course  of  husbandry,  consisting  of  ashes  leached  or  un- 
leached,  collections  from  the  stables,  barnyard,  cattle  pens,  or 
other  places  on  the  leased  premises,  or  composts  formed  by  an 
admixture  of  these  or  any  of  them  with  the  soil  or  other  sub- 
stances, such  removal  shall  be  deemed  waste,  and  within  the  pro- 
visions of  the  preceding  sections  of  this  chapter"  [i.  e.,  §  2778, 
giving  an  action  on  the  case  for  waste,  and  directing  judgment 
for  treble  damages  when  waste  is  wanton:  and  the  three  preced- 
ing sections.] 


§§  29-32]  FIXTURES.  37 

§  31.  Qualification  of  the  Eight  of  Removal  by  Ten- 
ant.—In  Taylor  L.  &  T.  §  550,  it  is  said:  "The  rule  in 
regard  to  the  removal  of  fixtures,  however,  requires  that 
the  article  be  capable  of  removal  without  the  destruction 
or  serious  injury  of  the  freehold;  that  is,  the  premises  must 
be  in  as  good  plight  and  condition  as  they  were  before  the 
annexation."  Thus,  in  Cullamore  v.  Gillis,  149  Mass.  578 
(14  Am.  St.  E.  460),  it  was  held  that  a  baker's  oven  is  not 
a  removable  fixture  when  built  by  the  tenant  upon  the  land- 
lord's premises  in  such  manner  that  it  becomes  a  fixed  and 
permanent  structure,  so  united  with  the  building  that  the 
two  are  inseparable  without  the  destruction  of  the  one  and 
substantial  injury  to  the  other,  and  so  built  that  when 
taken  down  it  loses  its  character  as  an  oven,  and  with  the 
exception  of  an  iron  lining  and  door  becomes  mere  brick 
and  mortar.  And  when  the  tenant  exercises  the  right  of 
removal,  he  must  repair  any  damages  the  premises  may 
have  sustained  by  the  act  of  removal,  beyond  the  loss  of 
the  thing  removed.  Seeger  v.  Pettit,  supra.  And  if  the  ten- 
ant has  taken  down  an  article  and  put  another  of  his  own  in 
its  place,  if  he  removes  his  own,  he  is  bound  to  restore  the 
other,  or  to  replace  it  by  a  similar  article.  Tayl.  L.  &  T. 
§  550. 

§  32.  Time  of  Removal. — Whatever  fixtures  the  tenant 
has  a  right  to  remove  must  be  removed  before  his  term  ex- 
pires, or  at  least  before  he  quits  possession;  for  if  the  tenant 
leaves  the  premises  without  removing  them,  and  the  landlord 
takes  possession,  they  become  the  property  of  the  landlord. 
And  the  true  principle  seems  to  be  that  the  annexation  of  a 
chattel  to  the  freehold  by  a  tenant  is  a  conditional  gift 
thereof  to  the  landlord,  which  may  be  defeated  by  its  timely 
removal,  but  otherwise  becomes  absolute.  2  Sm.  Lead.  Cas. 
257;  Taylor  Landl.  &  Ten.  §  551;  Holmes  v.  Tremper,  20 
Johns.  29  (11  Am.  Dec.  238,  and  note)  ;  G afield  v.  Hap- 
good,  17  Pick.  (Mass.)  192  (28  Am.  Dec.  290) ;  Stockwell  v. 
Marks,  17  Me.  455  (35  Am.  Dec.  266)  ;  Childs  v.  Hurd,  32 


38  REAL    PROPERTY.  [Chap.  2 

W.  Va.  66;  Kutter  v.  Smith,  2  Wall.  491.  And  if,  without 
surrendering  the  possession,  the  tenant  renews  his  lease,  mak- 
ing no  reservation  of  a  right  to  remove  the  fixtures  already 
erected  by  him,  the  right  to  remove  such  fixtures  is  lost.  For 
the  new  lease  supersedes  the  old,  and  the  fixtures  were  not 
removed  during  the  continuance  of  the  old  term.  See  Taylor 
Landl.  &  Ten.  §  552;  Loughran  v.  Ross,  45  N.  Y.  792  (6  Am. 
E.  173)  ;  Watriss  v.  Bank,  124  Mass.  571  (26  Am.  E.  694)  ; 
Carlin  v.  Bitter,  68  Md.  478  (6  Am.  St.  E.  467). x 

The  rule  laid  down  above  as  to  time  of  removal  always 
applies  where  the  term  is  of  certain  duration,  as  under  a 
lease  for  a  term  of  years,  which  contains  no  special  provi- 
sions as  to  fixtures.  But  where  the  term  is  uncertain,  or  de- 
pends upon  a  contingency,  as  when  a  party  is  in  as  tenant 
for  life  or  at  will,  fixtures  may  be  removed  within  a  reason- 
able time  after  the  tenancy  is  determined.  Watriss  v.  Bank, 
supra.  And  if  a  tenant  leaves  a  fixture  after  the  expiration  of 
his  term,  by  reason  of  the  landlord's  promise  to  sell  it  for  the 
tenant's  benefit,  the  tenant  still  has  a  reasonable  time  after 
the  term  to  remove  it;  for  otherwise  the  landlord  would  work 
a  fraud  on  the  tenant.  Torrey  v.  Burnett,  9  Vroom  (N.  J.) 
457  (20  Am.  B.  421). 

LIn  Carlin  v.  Ritter,  68  Md.  478  (6  Am.  St.  R.  467),  it  is  said: 
"All  the  elementary  writers  concur  in  laying  down  the  proposi- 
tion, that  if  a  tenant  having  the  right  to  remove  fixtures  erected 
by  him  on  the  demised  premises  accepts  a  new  lease  of  such 
premises,  without  reservation  or  mention  of  any  claim  to  such 
fixtures,  and  enters  upon  a  new  term  thereunder,  the  right  of 
removal  is  lost,  notwithstanding  his  actual  possession  has  been 
continuous.  And  the  reason  given  is  because  the  fixtures  set  upon 
the  premises  at  the  time  of  the  lease  are  part  of  the  thing  de- 
mised, and  the  tenant  by  accepting  a  lease  of  the  land  without 
reserving  his  right  to  the  fixtures,  has  acknowledged  the  right 
of  his  landlord  to  them,  which  he  is  afterwards  estopped  from 
denying."  The  above  is  the  well-nigh  universal  doctrine;  but  it 
is  denied  by  Judge  Cooley  in  Kerr  v.  Kingsbury,  39  Mich.  150 
(33  Am.  R.  362),  on  the  ground  that  it  is  against  public  policy, 
and  that  the  second  lease  ought  not  to  be  held  to  include  the  re- 
movable fixtures,  unless  from  the  lease  itself  an  understanding  to 
that  effect  is  plainly  inferable. 


CHAPTER  III. 

Estates  of  Freehold. 

I.    Freehold  Estates  of  Inheritance. 

§33.  Classification. — The  estates  of  inheritance  are,  (1), 
Fee-simple;  (2),  Base  or  qualified  fee;  (3),  Fee-conditional 
at  common  law;  and  (4),  Fee-tail.    Of  these  in  their  order. 

§  34.  1.  Fee-Simple. — Nature  of  an  Estate  in  Fee. — The 
word  fee  originally  signified  land  holden  of  a  superior,  as 
distinguished  from  allodial  land,  fee  and  feud  being  synony- 
mous. But  fee  is  now  employed  to  denote  the  quantity  of  in- 
terest the  tenant  has  in  land,  and  is  confined  to  estates  of  in- 
heritance, i.  e.,  those  which  may  descend  to  a  man's  heirs. 
When  the  word  fee  is  used  alone  it  means  fee-simple. 

An  estate  in  fee-simple  is  the  entire  interest  and  property 
in  land,  from  which  it  follows  that  no  person  can  have  a 
greater  estate  or  interest.  Accordingly,  whenever  a  man  grants 
his  land  in  fee-simple,  he  cannot  make  any  further  disposition 
of  it ;  he  has  already  granted  the  entire  interest,  and  there  is 
nothing  left  in  him  upon  which  any  further  grant  can  oper- 
ate. The  exceptions  to  this  doctrine  in  the  cases  of  a  con- 
tingency with  a  double  aspect,  uses,  and  executory  devises, 
will  be  considered  hereafter. 

The  word  "simple,'"  in  the  combination  fee-simple,  is  used 
to  distinguish  this  estate  from  a  base  fee  and  from  the  fee- 
conditional  at  common  law.  But  estates  in  fee-simple  may  be 
granted  upon  express  conditions,  of  which  hereafter. 

§  35.  Limitation  of  a  Fee  by  Feoffment. — A  fee-simple  at 
common  law  is  that  interest  which  the  tenant  has  in  land 
given  to  him  and  his  heirs.    And  at  common  law  the  words 


40  REAL    PROPERTY.  [Chap.  3 

"and  his  heirs,"  are  indispensable.  ISTo  circumlocution  has 
ever  been  held  sufficient  to  create  a  fee-simple  by  a  common 
law  conveyance.1  If  a  feoffment  or  grant  be  made,  "To  A 
and  his  heirs/'  the  word  "heirs"  is  called  a  word  of  limita- 
tion, i.  e.,  a  word  used  to  mark  out,  define,  and  limit  A's  es- 
tate, and  to  make  it  a  fee-simple.  The  heirs  of  A  are  not  in 
existence  during  his  life — nam  nemo  est  haeres  viventis — 
and  hence  they  take  nothing  under  the  feoffment  to  A  and  his 
heirs.  A  takes  the  whole  interest,  with  full  power  of  disposi- 
tion. "All  his  heirs  are  so  totally  in  him,"  says  Lord  Coke, 
"that  he  may  give  the  land  to  whom  he  will."  Co.  Litt.  22  b. 
Wins,  on  R.  P.  (39)  n.  1. 

By  the  policy  of  the  Feudal  System,  lands,  although  holden 
in  fee-simple,  were  inalienable  by  the  tenant  without  the  con- 
sent of  his  lord.  But  as  early  as  the  reign  of  Hen.  III.  (1216- 
1272),  the  right  to  sell  had  been  acquired  by  tenants  in  fee- 
simple;  and  this  right  was  expressly  recognized  by  the  stat- 
ute of  Quia  Emptores,  18  Ed.  I.  (1290),  by  which  it  was 
declared  that  it  should  be  "lawful  for  every  freeman  to  sell 
at  his  own  pleasure  his  lands  and  tenements,  or  part  thereof." 
Wms.  on  R.  P.  (61).  From  this  time,  certainly,  there  have 
been  no  restraints  imposed  by  law  on  the  alienation  of  the 
fee-simple,  but  on  the  other  hand,  the  doctrine  has  been  es- 
tablished that  if  the  grantor  of  a  fee  imposes  a  condition  in 
total  restraint  of  alienation,  it  is  repugnant  to  the  estate 

1  That  in  a  deed  at  common  law  the  word  "heirs"  was  indis- 
pensable to  confer  a  fee-simple,  see  Hollingsioortli  v.  McDonald, 
2  Harr.  &  J.  (Md.)  230  (3  Am.  Dec.  545) ;  Leitensdorfer  v.  Delpliy, 
15  Mo.  160  (55  Am.  Dec.  137);  and,  especially,  Adams  v.  Ross, 
1  Vroom  (N.  J.)  505  (82  Am.  Dec.  237;  1  Sh.  &  B.  L.  C,  Real 
Prop.  p.  11).  But  in  1  Washb.  R.  P.  it  is  said  that  "if  an  estate 
be  granted  clearly  in  fee,  and  the  deed  by  which  it  is  again 
granted,  instead  of  being  to  the  grantee  and  his  heirs,  be  to  him 
as  fully  as  it  was  granted  in  the  former  deed,  referring  to  it,  it 
is  only  borrowing  the  words  of  limitation  from  the  former  deed, 
and  conveys  a  fee."  See,  too,  Gould  v.  Lamb,  1  Mete.  (Mass.)  84 
(45  Am.  Dec.  187),  where  this  apparent  exception  is  recognized. 


§§35-36]  ESTATES    OF    FREEHOLD.  41 

granted,  and,  therefore,  void.     2  Tho.  Coke  (26).     1  Prest. 
on  Est.  (477). 

An  estate  in  fee-simple,  on  the  death  of  the  owner  intes- 
tate, will  descend  to  his  kindred,  lineal  or  collateral,  no  mat- 
ter how  remote,  in  an  order  marked  out  by  the  statutes  of 
descent.  And  a  limitation  to  one  and  his  right  heirs  is  the 
same  as  to  him  and  his  heirs.  And  a  limitation  directly  "to 
the  heirs  of  B"  conveys  a  fee-simple  to  such  heirs,  without 
adding,  "and  their  heirs."  Wms.  on  E.  P.  (255).  Co.  Litt. 
10  a.   4  Cruise  276. 

§  38.  Limitation  of  a  Fee  by  Devise. — We  have  seen  that 
at  common  law,  by  feoffment  or  grant,  the  word  "heirs"  is 
absolutely  necessary  in  order  to  limit  a  fee.  But  a  different 
rule,  by  indulgence  to  testators,  prevailed  as  to  wills,  and  in 
a  devise  the  doctrine  was  that  any  words  showing  the  inten- 
tion would  pass  the  fee.  Thus,  to  A  forever,  to  A  in  fee- 
simple,  etc.,  gave  the  fee-simple.1  And  now  in  England  by 
the  Wills  Act  of  1837,  taking  effect  January  1,  1838,  where 
any  real  estate  shall  be  devised  to  any  person  without  any 
words  of  limitation,  such  devise  shall  be  construed  to  pass 
the  fee-simple,  or  other  the  whole  estate  or  interest  which 

1  The  doctrine  at  common  law  that  even  a  devise  to  A,  without 
more,  passed  only  a  life  estate  to  A,  no  doubt  caused  the  frequent 
defeat  of  the  intention  of  testators,  and  the  courts,  we  are  told, 
were  astute  in  seizing  on  every  circumstance  or  expression  which 
tended  to  show  that  the  gift  was  meant  to  embrace  the  inherit- 
ance, and  was  not  to  be  confined  to  a  mere  life  estate.  See  Wms. 
R.  P.  (19);  Id.  (215)  and  note.  Thus  the  use  by  the  testator  of 
the  word  "estate"  might  suffice  to  carry  the  fee;  as  where  the 
devise  was  of  "all  my  real  and  personal  estate"  {Godfrey  v. 
Humphrey,  18  Pick.  537;  29  Am.  Dec.  621);  and  so  where  the 
testator  devised  "all  the  estate  called  Marrowbone,  in  the  county 
of  Henry"  (LamlerVs  Lessee  v.  Paine,  3  Cr.  97);  and  so  even 
where  the  devise  was,  "to  my  son  all  that  farm  or  estate  I  bought 
of  B,  containing  about  twenty  acres,  situated  at  Q,  in  the  parish 
of  H,"  etc.  (Burton  v.  White,  7  Exch.  720).  Again  the  use  of  the 
word  "property"  may  carry  the  fee,  as  in  Mayo  v.  Carrington,  4 
Call  (Va.),  472  (2  Am.  Dec.  580),  where  "all  my  other  property" 


42  REAL    PROPERTY.  [Chap.  3 

the  testator  had  power  to  dispose  of  by  will  in  such  real  es- 
tate, unless  a  contrary  intention  shall  appear  by  the  will. 
Wms.  on  E.  P.  (206).  It  will  be  seen  that  this  statute  only 
applies  to  a  devise;  and  the  rule  in  England  is  still  inflex- 
ible that  in  a  deed  a  fee  cannot  pass  without  the  magic  word 
"heirs." 

In  Virginia,  however,  by  a  statute  taking  effect  January 
1,  1787,  it  is  enacted  that  words  of  limitation  may  be  dis- 
pensed with  in  the  creation  of  a  fee-simple  in  all  cases ;  and 
the  language  of  the  Code  is  now  identical  with  that  of  the 
English  Wills  Act,  quoted  above,  except  that  the  words  "con- 
veyance" and  "grant"  are  added  to  "devise."  Code  1819,  eh. 
118,  §  8.  Code  1877,  §  2120.  So  now  in  Virginia,  a  limita- 
tion, either  by  deed  or  by  will,  "to  A,"  without  adding  other 
words,  will  pass  to  him  the  fee-simple,  if  the  grantor  or  tes- 
tator is  seised  in  fee,  unless  a  contrary  intention  be  made  to 
appear.  And  this  is  the  rule  in  the  United  States  generally. 
Wms.  on  E.  P.  (19)  n.  1;  (20)  n.  1;  (141.)  2  Bl.  Com. 
107-'8. 

§  37. — 2.  Base  or  Qualified  Pee. — This  estate  is  also  called 
a  determinable  fee.  Following  Chan.  Kent  (1  Com.  9),  we 
shall  treat  the  terms  base,  qualified,  and  determinable,  as 
synonymous. 

A  base  fee,  then,  is  an  estate  which  may  last  forever,  but 
whose  duration  is  circumscribed  by  something  collateral  to 
it,  which  may  never  happen;  but,  if  it  does  happen,  the  es- 

served  to  pass  a  fee  in  lands.  See  also  Jackson  v.  H ousel,  17 
Johns.  R.  281.  And  see  Davies  v.  Miller,  1  Call,  127;  Watson  v. 
Powell,  3  Id.  306;  Kennon  v.  McRoberts,  1  Wash.  (Va.)  96;  Wyatt 
v.  Sadler,  1  Munf.  537.  And  it  was  also  held  that  a  personal 
charge  upon  the  devisee  of  land  imputed  a  fee;  but  it  was  other- 
wise when  the  charge  was  on  the  land  only.  See  Tied.  R.  P.  §  37; 
Wms.  R.  P.  (215)  n.  1.  But  it  was  held  that  the  words  "lands  and 
tenements,"  and  even  "hereditaments,"  would  not  pass  the  fee, 
as  they  are  descriptive  of  the  thing  devised,  and  not  of  the  quan- 
tum of  interest.  See  §  7,  Supra,  note  1.  See,  especially,  Wright 
v.  Denn,  10  Wh.  204. 


§§36,37]  ESTATES    OP    FREEHOLD.  43 

tate  is,  immediately  and  ipso  facto,  at  an  end.  The  estate 
is  a  fee,  but  limited  to  end  upon  an  event  which  may  never 
take  place.  The  event  is  in  the  nature  of  a  limitation  of  the 
estate,  and  not  an  express  condition,  whereby  to  defeat  it.  An 
estate  is  limited  until  the  event  and  no  longer;  but,  as  tlie 
event  may  not  happen,  the  law  considers  the  estate  a  fee.  2 
Bl.  Com.  (109). 

The.-e  examples  of  base  fees  may  be  given:  (1),  To  A  and 
his  heirs  so  long  as  B  shall  have  heirs  of  his  body;  (2),  To 
A  and  his  heirs  until  B's  marriage;  (3),  To  A  and  his  heirs 
till  B  shall  attain  the  age  of  21;  (4),  To  A  and  his  heirs  till 
B  returns  from  Eome. 

In  the  first  example,  the  estate  of  A  is  a  ba.se  fee,  and  it 
can  never  become  absolute,  for  it  is  never  possible  to  say 
that  the  issue  of  B  will  not  fail.  But  in  the  last  three  ex- 
amples, the  estate,  though  at  first  base,  may  become  abso- 
lute. For  if  B  dies  before  marriage,  or  before  he  reaches 
twenty-one,  or  before  he  returns  from  Eome,  it  becomes  im- 
possible that  the  event  expressed  for  the  determination  of  the 
estate  of  A  should  ever  arise,  and  it  is,  therefore,  no  longer 
qualified  or  determinable. 

If,  in  the  examples  above,  the  word  "heirs"  be  omitted  in 
the  limitation  to  A,  he  will  have  a  life  estate  only.  It  cannot 
last  longer  than  for  his  life,  though  it  may  end  sooner. 

And  it  should  be  observed  that  an  estate,  to  A  and  his 
heirs  during  the  widowhood  of  B,  or  during  the  time  B 
shall  remain  at  Eome,  is  merely  an  estate  of  freehold  meas- 
ured by  a  life;  for  the  widowhood  of  B  or  the  residence  of  B 
at  Eome  will  determine  with  her  death.  And  it  is  one  of  the 
essential  qualities  of  an  estate  in  fee  that  it  may  last  forever. 
An  estate,  to  A  and  his  heirs  during  the  life  of  B  is  merely  a 
freehold  with  a  descendible  or  transmissible  quality,  and  the 
heir  is  entitled  as  special  occupant.  (1  Prest.  Est.  481 ;  Wms. 
on  E.  P.  20.) 

So  long  as  a  base-fee  continues,  the  owner  has  all  the 
rights  with  respect  to  it  which  he  would  have  as  to  a  fee- 


44  REAL    PROPERTY.  [Chap.  3 

simple.  It  will  descend  to  his  heirs,  if  not  sold;  and  if  sold, 
it  will  determine  (end)  upon  the  happening  of  the  event  upon 
which  it  was  limited  into  whosesoever  hands  it  may  have  come. 
(1  Prest.  Est.  440;  1  Wash.  E.  P.  63.) 

§  38.  3.  Fee-conditional  at  Common  Law. — A  fee-condi- 
tional at  common  law  was  limited  by  the  words,  "To  A  and 
the  heirs  of  his  body,"  the  identical  words  which  by  and  after 
the  statute  of  Be  Donis  Conditionalibus,  gave  an  estate-tail. 
So  the  fee-conditional  at  common  law  is  the  parent  of  the  fee- 
tail  by  the  statute.  2  Bl.  Com.  (110). 

When  after  the  Conquest  estates  first  became  hereditary 
in  England,  upon  a  feoffment  to  A  and  his  heirs,  the  word 
''heirs,"  for  feudal  reasons,  was  considered  to  mean  lineal 
heirs  only,  or  the  descendants  of  the  body  of  A,  to  the  ex- 
clusion of  his  collateral  relations,  such  as  brothers  and  cousins. 
The  descent  was  to  the  blood  of  the  first  purchaser;  and  the 
fiction  of  novum  feiidum  held  ut  antiquum  had  not  yet  been 
invented  whereby  to  let  in  collateral  heirs.  There  were  at  this 
time  no  estates  in  fee-simple,  and  therefore  a  limitation,  "To 
A  and  the  heirs  of  his  body,"  was  held  to  give  him  the  entire 
estate  or  interest,  leaving  no  reversion  in  the  feoffor,  but 
merely  a  possibility  or  chance  of  receiving  back  the  land  if 
A  died  without  issue,  which  possibility  was  called  his  right 
of  reverter. 

But  the  word  "heirs"  having  in  course  of  time  come  to 
signify  collateral  as  well  as  lineal  heirs,  it  became  necessary 
for  the  feoffor,  if  he  wished  to  confine  the  estate  to  the  lineal 
heirs  of  the  feoffee,  to  limit  it  expressly  to  him  and  the  heirs 
of  his  body.  And  this  estate  was  called  a  fee  or  fee-simple 
conditional,  because  of  the  condition  implied  in  the  donation, 
that  if  the  feoffee  died  without  heirs  of  his  body,  or  in  case 
of  the  failure  of  such  heirs  at  any  future  time,  the  land  should 
return  to  the  feoffor.  The  entire  interest  in  the  land  was  still 
considered  to  pass  to  the  feoffee  as  soon  as  the  feoffment  was 
made;  the  feoffor  had  no  reversion,  nor  could  he  grant  a  re- 
mainder after  the  fee-conditional.  The  condition  was  the  birth 


§§  37-38]  ESTATES    OF    FREEHOLD.  45 

of  issue.  The  fee,  however,  was  in  the  feoffee  at  once;  the  birth 
of  issue  was  not  the  cause  of  his  having  the  fee — a  condition 
precedent  to  its  vesting  in  him ;  but  the  non-birth  of  issue  was 
the  cause  of  his  losing  the  fee — a  condition  subsequent  upon 
the  failure  of  which  a  fee  already  vested  was  divested  and 
lost.  The  condition  was  subsequent  to  the  vesting  of  the  fee. 
2  Bl.  com.  (110)  n.  11;  Id.  (154). 

It  was  the  intention  of  the  givers  of  fee-conditional  es- 
tates that,  by  their  right  of  reverter,  the  land  should  return 
to  them  not  only  when  the  feoffee  never  had  issue,  but  when, 
although  there  was  issue  born,  such  issue  failed  at  any  time 
whatever.  The  language  of  De  Donis  is  express  upon  this 
point.  But  the  judges,  favoring  freedom  of  alienation,  held 
that  upon  the  birth  of  issue  the  estate  was  at  once  absolute 
in  the  donee  for  the  three  purposes  of  selling,  forfeiting,  and 
encumbering.,  as  if  the  estate  had  been  an  original  fee-simple. 
See  as  to  this  2  Bl.  Com.  (110). 

The  effect  given  by  the  judges  to  the  birth  of  issue  operated 
to  the  injury  of  the  lords  in  two  ways:  1.  If  a  lord  was  the 
owner  of  a  fee-conditional,  it  enabled  him,  upon  issue  born, 
to  sell  or  encumber  it.  It  might  also  be  forfeited  for  his  trea- 
son. Thus  the  power  of  the  great  families  was  weakened; 
2.  If  a  lord  had  given  a  fee-conditional  to  a  vassal,  such  lord 
lost  his  chance  of  reverter  by  the  mere  birth  of  issue,  which 
enabled  the  vassal  to  sell  the  land. 

For  these  reasons,  the  nobility  procured  the  enactment  of 
the  statute  of  De  Donis  Conditionalibus1  (13  Ed.  I.  (1285) 

1  De  Donis. — The  full  text  of  the  famous  statute  of  De  Donis 
ConditionaWbus  (also  called  Statute  of  Westminster,  2d),  is  as 
follows: 

"1.  First,  concerning  lands  that  many  times  are  given  upon 
condition,  that  is,  to-wit,  where  any  giveth  his  land  to  any  man 
and  his  wife,  and  to  the  heirs  begotten  of  the  bodies  of  the  same 
man  and  his  wife,  with  such  condition  expressed  that  if  the  same 
man  and  his  wife  die  without  heirs  of  their  bodies  between  them 
begotten,  the  land  so  given  shall  revert  to  the  giver  or  his  heir. 
In  case  also  where  one  giveth  lands  in  free  marriage,  which  gift 


46  REAL    PROPERTY.  [Chap.  3 

c.  1),  which  was  intended  to  render  lands  inalienable,  and  to 
keep  up  the  feudal  s}'stem,  which  the  lords  held  in  high  es- 
teem. 

§39.-4.  Estate-tail.— The  effect  of  the  statute  of  Be 
Bonis  upon  a  gift  "To  A  and  the  heirs  of  his  body,"  was  to 
cut  the  entire  interest,  which,  as  we  have  seen,  passed  before 
this  to  the  donee  of  a  fee-conditional,  into  two  estates,  viz. : 
an  estate-tail  in  the  donee,  and  a  fee-simple  in  reversion 
after  failure  of  issue  in  the  donor.     A  fee-tail  was  regarded 

hath  a  condition  annexed,  though  it  be  not  expressed  in  the  deed 
of  gift,  which  is  this,  that  if  the  husband  and  wife  die  without 
heirs  of  their  bodies  between  them  begotten,  the  land  so  given 
shall  revert  to  the  giver  or  his  heir.  In  case  also  where  one 
giveth  land  to  another  and  the  heirs  of  his  body  issuing;  it 
seemed  very  hard,  and  yet  seemeth  to  the  givers  and  their  heirs, 
that  their  will  being  expressed  in  the  gift  was  not  heretofore,  not 
yet  is  observed.  In  all  the  cases  aforesaid,  after  issue  begotten 
and  born  between  them  (to  whom  the  lands  were  given  under 
such  condition)  heretofore  such  feoffees  had  power  to  alien  the 
land  so  given,  and  to  disherit  their  issue  of  the  land,  contrary  to 
the  minds  of  the  givers,  and  contrary  to  the  form  expressed  in 
the  gift.  And  further,  where  the  issue  of  such  feoffee  is  failing, 
the  land  so  given  ought  to  return  to  the  giver  or  his  heir,  by 
form  of  the  gift  expressed  in  the  deed,  though  the  issue  (if  any 
were)  have  died;  yet  by  the  deed  and  feoffment  of  them  (to  whom 
the  land  was  so  given  upon  conditions),  the  donors  have  hereto- 
fore been  barred  of  their  reversion,  which  was  directly  repugnant 
to  the  form  of  the  gift." 

"2.  Wherefore  our  lord  the  king,  perceiving  how  necessary  and 
expedient  it  should  be  to  provide  remedy  in  the  aforesaid  cases, 
hath  ordained,  that  the  will  of  the  giver,  according  to  the  form 
in  the  deed  of  gift  manifestly  expressed  shall  be  from  henceforth 
observed;  so  that  they  to  whom  the  land  was  given  under  such 
condition,  shall  have  no  power  to  alien  the  land  so  given,  but 
that  it  shall  remain  unto  the  issue  of  them  to  whom  it  was  given 
after  their  death,  or  shall  revert  unto  the  giver,  or  his  heirs,  if 
issue  fail  (whereas  there  is  no  issue  at  all),  or  if  any  issue  be, 
and  fail  by  death,  or  heir  of  the  body  of  such  issue  failing.  Nei- 
ther shall  the  second  husband  of  any  such  woman,  from  hence- 
forth, have  anything  in  the  land  so  given  upon  condition,  after 


§§38,39]  ESTATES    OF    FREEHOLD.  47 

as  a  smaller  estate  carved  out  of  the  fee-simple.  Hence  the 
donor  had  a  true  reversion,  not  a  mere  reverter;  and  hence, 
after  a  fee-tail,  a  remainder  may  be  granted  of  the  fee-simple. 

The  name  fee-tail,  or  feodum-talliatum,  was  borrowed  from 
the  feudists,  amongst  whom  it  signified  any  mutilated  or 
truncated  inheritance,  from  which  the  heirs  general  were  cut 
off.  The  word  tail  is  from  Fr.  tailler  to  cut.  And,  under 
De  Donis,  the  term  fee-tail  might  also  be  considered,  to  refer 
to  the  fact  that  the  estate  is  cut  or  carved  out  of  the  entire 
fee  which  had  been  before  held  to  pass. 

For  the  effect  of  the  strict  entail  produced  by  De  Donis, 
see  2  Bl.  Com.  (116).  And  for  the  way  in  which,  after  two 
hundred  years,  relief  was  obtained  by  that  "bold  and  un- 
exampled stretch  of  judicial  legislation — a  Common  Recov- 
ery"  (1  Kent.  Com.  13),  see  Taltarum's  Case,1  2  Bl.  Com. 

the  death  of  his  wife,  by  the  law  of  England,  nor  the  issue  of 
the  second  husband  and  wife  shall  succeed  in  the  inheritance, 
but  immediately  after  the  death  of  the  husband  and  wife  (to 
whom  the  land  was  so  given),  it  shall  come  to  their  issue,  or  re- 
turn unto  the  giver,  or  his  heir,  as  before  is  said.  And  forasmuch 
as  in  a  new  case  a  new  remedy  must  be  provided,  this  manner  of 
writ  shall  be  granted  to  the  party  that  will  purchase  it."  See 
2  Washb.  Real  Prop.,  Appendix,  p.  694. 

1  Common  Recovery. — The  procedure  in  a  common  recovery  is 
thus  clearly  described  in  Williams  on  Real  Property,  pp.  45,  46: 
"In  this  case,  called  Taltaruiri's  Case,  the  destruction  of  an  entail 
was  accomplished  by  judicial  proceedings  collusively  taken 
against  a  tenant  in  tail  for  the  recovery  of  the  lands  entailed. 
Such  proceedings  were  not  at  that  time  quite  unknown  to  the 
English  law,  for  the  monks  had  previously  hit  upon  a  similar 
device  for  the  purpose  of  evading  the  statutes  of  mortmain,  by 
which  open  conveyances  of  lands  to  their  religious  houses  had 
been  prohibited;  and  this  device  they  had  practiced  with  con- 
siderable success  till  restrained  by  act  of  parliament.  In  the  case 
of  which  we  are  now  speaking,  the  law  would  not  allow  the  entail 
to  be  destroyed  simply  by  the  recovery  of  the  lands  entailed  by  a 
friendly  plaintiff  on  a  fictitious  title;  this  would  have  been  too 
barefaced;  and  in  such  a  case  the  issue  of  the  tenant,  claiming 
under  the  gift  to  him  in  tail,  might  have  recovered  the  lands  by 


48  REAL    PROPERTY.  [Chap.  3 

(117)  and  (357).  Both  fines  and  recoveries  were  abolished 
in  England  in  1833,  and  an  estate-tail  may  now  be  passed 
there  by  a  simple  deed  enrolled  in  Chancery.  Wms.  on  E. 
P.  (18).    The  right  to  suffer  a  recovery  was  held  an  insepa- 

means  of  a  writ  of  formedon,  so-called  because  they  claimed  per 
formam  doni,  according  to  the  form  of  the  gift,  which  the  statute 
had  declared  should  be  observed.  The  alienation  of  the  lands  en- 
tailed was  effected  in  a  more  circuitous  mode,  by  judicial  sanc- 
tion being  given  to  the  following  proceedings,  which  afterwards 
came  into  open  and  frequent  use,  and  had  some  little  show  of 
justice  to  the  issue,  though  without  any  of  its  reality.  The  ten- 
ant in  tail,  on  the  collusive  action  being  brought,  was  allowed  to 
bring  into  court  some  third  person,  presumed  to  have  been  the 
original  grantor  of  the  estate-tail.  The  tenant  then  alleged  that 
this  third  person  had  warranted  the  title;  and  accordingly  begged 
that  he  might  defend  the  title  which  he  had  so  warranted.  This 
third  person  was  accordingly  called  on;  who,  in  fact,  had  had 
nothing  to  do  with  the  matter;  but,  being  a  party  in  the  scheme, 
he  admitted  the  alleged  warranty,  and  then  allowed  judgment  to 
go  against  him  by  default.  Whereupon  judgment  was  given  for 
the  demandant,  or  plaintiff,  to  recover  the  lands  from  the  tenant 
in  tail;  and  the  tenant  in  tail  had  judgment  empowering  him  to 
recover  a  recompense  in  lands  of  equal  value  from  the  defaulter, 
who  had  thus  cruelly  failed  in  defending  his  title.  If  any  such 
lands  had  been  recovered  under  the  judgment,  they  would  have 
been  held  by  the  tenant  for  an  estate-tail,  and  would  have  de- 
scended to  the  issue  in  lieu  of  those  which  were  lost  by  the  war- 
rantor's default.  But  the  defaulter,  on  whom  the  burden  was 
thus  cast,  was  a  man  who  had  no  lands  to  give,  some  man  of 
straw,  who  could  easily  be  prevailed  on  to  undertake  the  respon- 
sibility; and  in  later  times  the  crier  of  the  court  was  usually 
employed.  So  that,  whilst  the  issue  still  had  the  judgment  of 
the  court  in  their  favor,  unfortunately  for  them  it  was  against 
the  wrong  person;  and  virtually  their  right  was  defeated,  and 
the  estate-tail  was  said  to  be  barred.  Not  only  were  the  issue 
barred  of  their  right,  but  the  donor  who  had  made  the  grant,  and 
to  whom  the  lands  were  to  revert  on  failure  of  issue,  had  his 
reversion  barred  at  the  same  time.  So,  also,  all  estates  which 
the  donor  might  have  given  to  other  persons,  expectant  on  the 
decease  of  the  tenant  in  tail  without  issue  (and  which  estates  are 
called    remainders    expectant    on    the    estate-tail)    were    equally 


§§39,40]  ESTATES    OF    FREEHOLD.  49 

rable  incident  to  an  estate-tail.  So  now  as  to  right  to  bar  by 
a  deed  enrolled.  Any  condition  to  the  contrary  is  null  and 
void.    Wins,  on  R.  P.  (47). 

§  40.    Estates-tail  in  Virginia.— Upon  the  first  settlement 
of  Virginia  (1607),  the  statute  of  Be  Bonis  became  part  of 
the  law  of  the  Colony,  and  before  the  Revolution  entails  were 
greatly  favored.     The  colonists  also  brought  with  them  fines 
and  recoveries  as  a  means  of  barring  entails,  but  these,  by  Act 
of   the   Assembly   in   1705,   were   abolished,   and   estates-tail 
could  only  be  barred  by  special  act  of  the  legislature,  though 
this  stringency  was  somewhat  relaxed,  as  to  small  estates,  in 
1734.     3  Hen.  Stats.  320;  4  Id.  400.     And  in  1727  slaves 
were  allowed  to  be  entailed  with  land.     4  Id.  225.     But  at 
the  Revolution,  so  calculated  did  our  ancestors  consider  es- 
tates-tail to  sustain  the  principles  of  aristocracy,  and  so  va- 
riant to  the  spirit  of  our  institutions,  that,  instead  of  tam- 
pering with  so  noxious  a  plant,  they  resolved  to  lay  the  axe 
to  its  root  by  a  total  abolition.     An  act  was  passed  for  this 
purpose  on  October  7,  1776,  but  not  being  quite  effectual, 
another  to  complete  the  work  was  enacted  to  take  effect  Janu- 
ary 1,  1787.     The  language  of  the  Code  now  is :  "Every  estate 
in  lands  so  limited,  that  as  the  law  was  on  the  seventh  clay 
of  October  in  the  year  1776,  such  estate  would  have  been  an 
estate-tail,  shall  be  deemed  an  estate  in  fee-simple."     Code 
Va.  §  2421 ;  9  Hen.  Stats.  226 ;  Boy  v.  Gamett,  2  Wash.  9 ; 
1  Lorn.  Dig.  31. 

It  will  be  remembered  that  estates-tail  are  not  abolished 
in  England.  It  is  in  the  power  of  each  tenant  to  bar  the 
entail,  but  if  he  chooses  he  may  leave  it  undisturbed.  But 
in  Virginia  no   estates-tail,  however  created,   can  continue 

barred.  The  demandant  in  whose  favor  judgment  was  given  be- 
came possessed  of  an  estate  in  fee-simple  in  the  lands;  an  estate 
the  largest  allowed  by  law,  and  bringing  with  it  the  fullest  pow- 
ers of  alienation,  as  will  be  hereafter  explained;  and  the  demand- 
ant, being  a  friend  of  the  tenant  in  tail,  of  course  disposed  of  the 
estate  in  fee-simple  according  to  his  wishes." 

4 


50  REAL    PROPERTY.  [Chap.  3 

such,  the  statute  operating  as  one  great  universal  recovery, 
and  docking  all  estates-tail  whatever;  those  created  before 
its  enactment  instanter  and  ipso  facto,  those  created  there- 
after, from  the  moment  of  their  commencement.  1  Lorn. 
Dig.  (27);  Carter  v.  Tyler,  1  Call,  195;  Jiggetts  v.  Davis, 

1  Leigh,  418-'24. 

Though  estates-tail  cannot  now  exist  in  Virginia,  since 
every  estate  in  lands  so  limited  as  to  be  a  fee-tail  on  October  7, 
1776,  shall  be  deemed  a  fee-simple,  it  is  nevertheless  neces- 
sary to  understand  the  rules  by  which  they  were  aforetime 
created,1  since  such  limitations  will  be  considered  fees-simple. 
The  doctrines  which  teach  the  nature  of  fees-tail,  and  how 
created,  thus  survive  the  destruction  of  the  estates  them- 
selves. 1  Lorn.  Dig.  (20).  And  this  remark  is  applicable  in 
the  United  States  generally. 

For  an  account  of  the  status  of  estates-tail  in  America, 
see  1  Wash.  K.  P.  (81).  They  are  either  changed  into 
fees-simple  in  the  tenant  himself,  as  in  Virginia,  or  else  the 
tenant  is  given  an  estate  for  life  only,  and  the  fee-simple 
vests  in  his  issue  by  way  of  remainder.  In  Delaware,  how- 
ever, estates-tail  still  exist,  though  they  may  be  barred  by 

1  To  create  a  fee-tail  by  deed,  the  regular  words  are,  "To  A  and 
the  heirs  of  his  body."  The  word  "heirs,"  as  a  word  of  inherit- 
ance, is  indispensable;  and  it  must  be  coupled  with  words  of 
procreation,  either  "of  the  body,"  or  other  words  of  similar  im- 
port.  Beresford's  Case,  7  Rep.  41.    In  Hollingsivorth  v.  McDonald, 

2  H.  &  J.  (Md.)  230  (3  Am.  Dec.  545)  it  is  said:  "It  is  estab- 
lished that  the  words  de  corpore  suo  are  not  indispensably  neces- 
sary, but  may  be  supplied  by  words  equipollent  or  tantamount, 
plainly  designating  or  pointing  out  the  body  from  which  the  heirs 
inheritable  are  to  issue  or  descend."  Thus  the  words  "of  himself 
issuing  or  lawfully  begotten";  "of  his  flesh";  "of  his  wife  be- 
gotten"; "which  he  may  happen  to  have  to  beget";  are  all  words 
of  procreation,  and  coupled  with  the  word  "heirs,"  create  an  es- 
tate-tail. But  in  a  grant  or  feoffment,  the  words  "to  A  and  his 
seed,"  or  "to  A  and  his  offspring,"  or  to  A  and  the  issue  of  his 
body,"  are  insufficient  to  confer  an  estate-tail,  and  only  give  A  an 
estate  for  life,  for  want  of  the  word  "heirs."    (Wms.  R.  P.  144; 


§§40,41]  ESTATES    OP    FREEHOLD.  51 

deed.  Daniel  v.  Whartenby,  17  Wall.  639.  2  Bl.  Com.  (119) 
n.  18. 

§  41. — limitation  of  Estates  in  Fee  and  in  Tail. — The  fol- 
lowing summary  of  the  words  of  limitation  sufficient  to  create 
a  fee-simple  or  fee-tail,  by  deed  or  will,  in  England  and  Vir- 
ginia, formerly  and  now,  may  prove  useful  to  the  student. 

I.  In  England. — A.  Fee-simple.  (1).  By  Deed.  (^.For- 
merly: "To  A  and  his  heirs."  (&),  Now:  "To  A  and  his 
heirs." 

(2).  By  will  (devise),  (a).  Formerly:  "To  A  forever,  in 
fee-simple,  etc."  (b).  Now:  "To  A."  (Wills  Act  1837,  1 
Victoria.) 

B.  Fee-tail.  (1).  By  deed.  (a).  Formerly :  "To  A  and 
the  heirs  of  his  body."  (b).  Now:  "To  A  and  the  heirs  of 
his  body." 

(2).  By  will    (devise),      (a).  Formerly:  "To  A  and  his 

issue,  seed,  etc." 

II.  In  Virginia. —  (Same  in  the  United  States  generally.) 
A.  Fee-simple.  (1).  By  deed.  (a).  Formerly:  "To  A  and 
his  heirs."  (b).  Now:  "To  A,"  by  statute  taking  effect  Jan- 
uary 1,  1787. 

(2).  By  will  (devise),  (a).  Formerly:  "To  A  forever  in 
fee-simple,  etc."     (b).  Now:  "To  A"   (by  statute  of  1787). 

B.  Fee-tail.  (1).  By  deed.  (a).  Formerly:  "To  A  and 
the  heirs  of  his  body."     (b).  Now:  "To  A  and  the  heirs  of 

2  Bl.  Com.  115.)  Thus  in  Pennsylvania,  in  Foster  v.  Joice,  3 
Wash.  C.  C.  498,  a  conveyance  to  three  Indian  chiefs  "and  their 
generation,  to  endure  as  long  as  the  waters  of  the  Delaware  shall 
run,"  was  held  to  pass  but  a  life  estate,  a  decision  which  must 
have  surprised  the  "untutored"  minds  of  the  grantees.  In  a  will, 
however,  the  same  doctrine  of  indulgence  to  testators  prevails  as 
to  a  fee-tail  which  applies  to  a  fee-simple;  and  a  devise  "to  A  and 
his  issue,"  "to  A  and  his  seed,"  etc.,  confers  a  fee-tail.  (2  Bl. 
Com.  115.)  In  wills,  indeed,  a  fee-tail  is  frequently  raised  by  im- 
plication, to  effectuate  intent,  as  will  be  explained  hereafter  in 
the  chapter  on  Executory  Interests. 


52  REAL    PROPERTY.  [Chap.  3 

his  body."     But  since  1776  such  fee-tail  is  at  once  changed 
into  a  fee-simple. 

(3).  By  will  {devise).  Formerly  and  now:  "To  A  and  his 
issue,  seed,  etc.,"  hut  since  1776  such  estate-tail  is  at  once 
converted  into  fee-simple. 

II.    Freehold  Estates  not  of  Inheritance. 

§  42.  Estate  for  the  Tenant's  Own  Life. — As  to  civil  death 
see  1  Bl.  Com.  (132).  There  is  no  civil  death  in  Virginia, 
and  it  is  necessary  to  provide  against  it  by  limiting  the  estate 
during  the  natural  life  of  the  tenant.  See  2  Bl.  Com.  (122) ; 
2  Minor's  Inst.  90. 

§  43.  Tortious  Conveyances. — A  tenant  for  his  own  life 
would  at  common  law  forfeit  his  estate  to  the  remainder- 
man or  reversioner,  by  conveying  to  another  a  larger  estate 
than  he  could  rightfully  convey;  as,  e.  g.,  an  estate  for  the 
life  of  another,  in  tail,  or  in  fee-simple.  But  this  doctrine 
of  forfeiture  was  confined  to  a  conveyance  by  feoffment,  fine, 
or  common  recovery,  and  these,  because  they  enabled  the 
tenant  to  work  a  wrong,  were  called  tortious  conveyances, 
whereas  conveyances  under  the  statute  of  uses,  such  as  bar- 
gain and  sale,  lease  and  release,  were  called  innocent  convey- 
ances. See  2  Bl.  Com.  (274).  But  now  in  England  and 
Virginia  no  conveyance  can  operate  tortiously  (or  by  wrong), 
it  being  provided  by  statute  that  no  conveyance  shall  pass 
a  greater  estate  than  the  grantor  has  the  right  to  convey. 
Code  Va.  §  2419;  Elys  v.  Wynne,  22  Grat.  224. 

§  44.  Estovers  and  Emblements. — For  the  incidents  of  an 
estate  for  life,  see  2  Bl.  Com.  (122).  As  to  the  right  of 
tenant  for  life  to  estovers,  see  Miles  v.  Miles,  32  1ST.  H.  147; 
64  Am.  Dec.  362  &  n.  367-68.  As  to  emblements,  see  64 
Am.  Dec.  369.  Formerly  the  subject  of  emblements  was  reg- 
ulated in  Virginia  by  statute ;  but  the  Code  of  1887  declares 
(§  2806),  "In  all  cases  the  right  to  emblements  shall  be  as 
at  common  law."     But  it  is  enacted  by  §  2807  that,  "The 


§§41-45]  ESTATES    OF    FREEHOLD.  53 

tenant  who  is  entitled  to  emblements,  or  his  personal  repre- 
sentative, shall  pay  a  reasonable  rent  for  so  much  land  as  the 
emblements  shall  occupy,  in  the  same  proportion  as  it  shall 
bear  in  quantity  and  value  to  the  entire  premises;  and  such 
rent  shall  be  apportioned  among  the  owners  of  the  reversion, 
if  there  be  more  than  one,  according  to  their  respective  inter- 
ests." And  §  2808  enacts :  "If  any  land  has  been  prepared  by 
the  tenant  previous  to  the  expiration  of  the  lease,  for  the 
purpose  of  putting  a  crop  into  the  ground,  under  such  circum- 
stances as  would  have  entitled  the  tenant,  or  his  personal 
representative,  to  emblements,  if  the  crop  had  been  put  in, 
those  who  succeed  to  the  land  shall  pay  a  reasonable  compen- 
sation for  such  preparation."  Whether  the  tenant  shall  pay 
rent  for  the  premises  occupied  by  the  emblements  is  doubtful 
at  common  law;  §  2807  settles  it  in  favor  of  the  landlord. 
And  at  common  law  the  mere  preparation  of  the  soil  for  crops 
will  give  the  tenant  no  right  to  emblements,  if  they  have  not 
been  actually  sown  or  planted  when  his  estate  terminates; 
§  2808  allows  reasonable  compensation  to  the  tenant  in  this 
case. 

§  45.  Lessees  of  Tenants  for  Life. — As  to  the  privileges  of 
the  under-tenant,  or  lessee,  of  a  tenant  for  life,  see  2  Bl.  Com. 
(123).  By  Code,  Virginia,  §  2809,  it  is  enacted:  "If  there 
be  tenant  for  life  or  other  uncertain  interest  in  land  which  is 
let  to  another,  upon  the  determination  of  such  life  or  other 
uncertain  interest  the  lessee  may  hold  the  land  to  the  end  of 
the  current  year  of  the  tenancy,  paying  rent  therefor;  the 
rent,  if  it  be  reserved  in  money,  shall  be  apportioned  between 
the  tenant  for  life  or  other  uncertain  interest,  or  his  personal 
representative,  and  those  who  succeed  to  the  land."  For  rent 
reserved  in  kind  a  special  provision  is  made,  for  which  see 
§  2809.  But  suppose  the  lessee  does  not  choose  to  hold  the 
land  to  the  end  of  the  current  year?  It  is  then  provided  by 
Code  of  Virginia,  §  2810,  "on  the  determination,  by- death  or 
otherwise,  of  the  estate  or  other  thing,  from  or  in  respect  of 
which  any  rent,  hire,  or  money,  coming  due  at  fixed  periods, 


54  REAL    PROPERTY.  [Chap.  3 

issues,  or  is  derived,  or  on  the  death  of  any  person  interested 
in  such  rent,  hire,  or  money,  the  person,  or  the  personal 
representative  or  assignee  of  the  person,  who  would  have  been 
entitled,  but  for  such  death  or  determination,  to  the  rent, 
hire,  or  money  coming  due  at  any  such  period,  shall  have  a 
proportion  thereof,  according  to  the  time  which  shall  have 
elapsed  of  the  time  for  which  the  said  rent,  hire,  or  other 
money  was  growing  due,  including  the  day  of  such  death  or 
determination,  deducting  a  proportional  part  of  the  charges." 

§  46.  Waste. — For  the  general  doctrines,  see  2  Bl.  Com. 
(281)  to  (284);  Bisph.  Eq.  §§  429-435.  In  general,  the 
law  in  the  United  States  is  the  same  as  in  England,  with 
some  modifications  growing  out  of  the  difference  between  an 
old  and  a  new  country.  Thus,  the  cutting  of  timber  is  waste 
in  England  if  it  go  beyond  the  right  to  reasonable  estovers; 
but  in  the  United  States  the  clearing  of  land  for  cultivation 
may  be  a  necessity,  and  for  the  benefit  of  the  inheritance,  and 
so  not  waste  when  done  by  a  tenant.  See  Findlay  v.  Smith, 
6  Munf.  (Va.)  134  (8  Am.  Dec.  133)  ;  Owen  v.  Hyde,  6  Yer- 
ger  (Tenn.)  334  (27  Am.  Dec.  467).  Again,  converting 
meadow  into  pasture  by  life-tenant  is  waste  in  England,  but 
not  so  in  Ehode  Island,  unless  detrimental  to  the  inheritance, 
and  contrary  to  the  ordinary  course  of  good  husbandry. 
Clemence  v.  Steere,  1  R.  I.  272  (53  Am.  Dec.  621).  But  in 
University  v.  Tucker,  31  W.  Va.  62],  it  is  held  that  taking 
clay  from  the  soil  by  a  life-tenant,  and  manufacturing  it  into 
bricks,  and  selling  them,  is  waste,  the  court  saying :  "Accord- 
ing to  all  the  authorities  this  is  waste.  It  is  taking  the  very 
substance  of  the  inheritance.  There  is  no  evidence  that  brick 
was  made  on  the  land  in  the  life-time  of  the  testator.  In 
Smith  v.  Rome,  19  Ga.  89,  it  was  held  to  be  waste  to  take  rock 
from  land  for  the  purpose  of  paving  the  streets  of  a  city.  The 
life-tenant  cannot  cut  turf  on  bog  lands  for  sale.  1  Co.  Litt. 
54  b.  He  cannot  dig  for  gravel  or  lime,  clay,  brick,  earth, 
stone,  or  the  like,  except  for  repairs  of  the  buildings,  or  the 
manuring  of  the  lands.     Dickinson  v.  Jones,  36  Ga.  97.     The 


§§45-48]  ESTATES    OF    FREEHOLD.  55 

life  tenant  has  the  usufruct  of  the  land.  He  can  enjoy  the 
annual  produce  of  the  land  during  life,  but  he  must  not  do 
any  damage  to  the  absolute  property  in  the  remainderman." 

There  is  now  no  forfeiture  in  Virginia  for  waste,  but  if  it 
it  be  found  by  the  jury  that  the  waste  was  committed  wan- 
tonly, judgment  shall  be  for  three  times  the  amount  of  the 
damages  assessed  therefor.     Code  Ya.  §  2778. 

§  47.  2.  Estate  for  the  Life  of  Another  than  the  Tenant. 
(pur  aider  vie.) — For  the  doctrine  of  general  and  special 
occupancy,  see  2  Bl.  Com.  258.  Neither  kind  of  occupancy 
now  exists  in  Virginia,  it  being  provided  by  statute  that  "any 
estate  for  the  life  of  another  shall  go  to  the  personal  repre- 
sentative of  the  party  entitled  to  the  estate,  and  be  assets  in 
his  hands,  and  be  applied  and  distributed  as  the  personal 
estate  of  such  party."     Code  Va.,  §  2653. 

§  48.  2.  Estate-tail  after  the  Possibility  of  Issue  Extinct. 
—  (See  2  Bl.  Com.  124.)  This  estate  does  not  now  exist  in 
Virginia,  every  estate-tail  becoming  a  fee-simple  immediately 
on  its  creation.  Orndoff  v.  Turman,  2  Leigh  (Va.)  200; 
(Jutland  v.  Bowen,  115  Ind.  150  (7  Am.  St.  Bep.  420). x 

1  The  estates  for  life  arising  out  of  the  relation  of  husband  and 
wife — Dower,  Curtesy,  and  Jointure — will  be  treated  of  hereafter 
in  a  separate  chapter,  as  some  of  the  doctrines  cannot  be  well 
understood  until  after  the  discussion  of  remainders,  conditions, 
and  other  topics. 


CHAPTER  IV. 

Estates  Less  than  Fkeehold. 

I.  Estate  for  years. 

§  49.  An  Estate  for  Years  Distinguished  from  an  Interesse 
Termini. — "Tenant  for  term  of  years  is  where  a  man  let- 
teth  lands  or  tenements  to  another  for  a  term  of  certain  years 
after  the  number  of  years  that  is  accorded  between  lessor  and 
lessee ;  and  when  the  lessee  entereth  by  force  of  the  lease,  then 
is  he  tenant  for  term  of  years."  Litt.  §  58 ;  1  Tho.  Co.  628 ; 
2  Bl.  Com.  (144).  The  lessee  for  years  does  not  acquire  an 
estate  in  the  demised  land  until  he  enters  thereon;  the  lease 
of  itself  gives  him  only  the  right  of  entry  on  the  land,  which 
right  is  called  his  interest  in  the  term,  or  interesse  termini. 
Tied.  E.  P.  §  174.  And  before  entry  by  the  lessee  on  the 
land,  no  release  of  the  reversion  can  be  made  to  him  by  the 
lessor.  Thus,  if  A  leases  Blackacre  to  B  for  one  year,  and 
then,  before  B  enters  on  the  land,  releases  to  him  the  rever- 
sion, the  release  is  void.  The  importance  of  this  doctrine  will 
be  seen  hereafter  with  reference  to  deeds  of  lease  and  release. 

§  50.  Words  Proper  to  Create  a  Lease. — The  ordinary  and 
most  formal  words  are  "demise,  lease  and  to  farm  let";  but 
any  words,  whether  they  are  in  the  form  of  a  license  or  agree- 
ment, which  indicate  the  intention  of  the  parties  that  one  shall 
divest  himself  of  the  possession,  and  that  the  other  shall  come 
into  it  for  a  certain  time,  will,  in  construction  of  law,  amount 
to  a  lease.1    And  as  to  the  certain  time,  it  is  enough  that  there 

1  What  Constitutes  a  Lease, — "A  lease  for  years  is  a  contract 
between  lessor  and  lessee  for  possession  and  profits  of  lands,  etc., 
on  the  one  side,  and  a  recompense  by  rent,  or  other  consideration, 
on  the  other."     (5  Bac.  Abr.  433;   Thomas  v.  R.  Co.,  101  U.  S.  71, 

56 


§§49,50]  ESTATES    LESS    THAN    FREEHOLD.  57 

is  a  limit  (terminus)  beyond  which  the  lease  cannot  extend, 
though  it  is  liable  to  end  at  any  time,  and  before  the  limit  is 
reached.  Thus,  "To  A  for  100  years,  if  he  shall  so  long  live," 
gives  A  a  term  of  years  (chattel  real),  because  the  lease  cannot 
extend  beyond  the  100  years,  though  it  may  end  at  any  time 
by  A's  death ;  and  this  although  it  may  be  certain  that  it  can- 
not reach  the  limit,  and  so  will  surely  end  at  A's  death,  and 
not  by  efflux  of  time.     See  2  Bl.  Com.  (143). 

7S.)  The  above  definition  is  faulty  in  not  stating  that  a  lease  for 
years  is  for  a  determinate  period. 

No  set  form  of  words  is  necessary  to  constitute  a  lease.  (Michie 
v.  Wood,  5  Rand.  (Va.)  571;  Upper  Appomattox  Co.  v.  Hamilton, 
S3  Va.  319.)  "Very  frequently  it  is  a  matter  of  great  difficulty 
to  determine  whether  the  agreement  under  which  the  tenant 
holds  is  technically  a  lease  or  a  license.  The  decisions  on  this 
subject  are  numerous  and  extremely  difficult  to  reconcile."  Hanks 
v.  Price,  32  Grat.  107,  110,  per  Staples,  J.  See  Barksdale  v. 
Hairston,  81  Va.  764;  Hodgson  v.  Perkins,  84  Va.  706. 

For  examples  of  what  are  called  "mining  leases,"  see  Cowan  v. 
Radford  Iron  Co.,  83  Va.  547;  Beaton  v.  Taylor,  90  Va.  219;  Young 
v.  Ellis,  91  Va.  297;  Shenandoah  Land,  etc.,  Co.  v.  Hise,  92  Va. 
238.  As  to  agreements  for  the  cultivation  of  land  on  shares,  see 
note  to  Putnam  v.  Wise  (N.  Y.),  37  Am.  Dec.  317-323.  In  4 
Am.  &  Eng.  Enc.  of  Law  (1st  ed.),  895,  it  is  said,  "That  when  a 
farm  is  let  out  on  shares  it  depends  upon  the  stipulations  of  the 
contract,  and  the  intention  of  the  parties,  whether  they  are  ten- 
ants in  common  or  partners,  or  whether  the  relation  of  landlord 
and  tenant,  or  of  master  and  servant,  exists;  and  the  rights  of 
the  parties  to  the  crops  raised  are  determined  accordingly." 

For  a  case  in  which  the  contract  between  the  parties  as  to  land, 
whereby  they  became  for  the  period  of  a  year  associated  in  the 
tillage  thereof,  constituted  them  joint  tenants  of  the  crop  of  corn 
raised,  see  Lowe  v.  Miller,  4  Grat.  196;  cited  in  Hanks  v.  Price, 
32  Grat.  107.  In  Lowe  v.  Miller  the  alleged  lessor  was  not  the 
owner  of  the  land,  but  acted  under  a  license  from  the  owner,  and 
the  court  held  that  the  agreement  between  the  parties  "could  not 
be  treated  as  a  lease,  rendering  rent  in  kind,  inasmuch  as  the 
reservation  of  one-half  of  the  crop  was  not  incident  to  the  re- 
version, and  consequently  gave  no  right  of  distress." 

In  Reynolds  v.  Pool.  84  N.  C.  37  (37  Am.  Rep.  607),  the  follow- 
ing contract  was  held  to  make  the  parties  partners:     "On   the 


58  REAL    PROPERTY.  [Chap.  4 

§  51.  Actual  Lease  Distinguished  from  a  Contract  to  Lease. 
— See  Tied.  K.  P.,  §  179.  The  fact  that  no  particular  words 
are  required  for  actual  leases  often  renders  it  difficult  to  say 
whether  the  words  that  are  used  create  an  actual  present  lease, 
or  merely  amount  to  a  contract  to  create  a  lease  in  future. 
"As  the  law  stands  with  us,  the  whole  question  resolves  itself 
into  one  of  construction,  and  an  instrument  will  be  construed 

first  Monday  in  February,  1878,  I  agreed  with  McPheeters  to  farm 
for  the  year  1878  on  these  terms:  He  was  to  furnish  the  outfit 
and  the  land.  I  was  to  hire  hands,  and  superintend  the  making 
of  the  crop.  He  was  to  provide  money  to  pay  the  hands  and  carry 
on  the  business;  for  one-half  of  which,  as  well  as  for  the  like 
proportion  of  the  hire  and  cost  of  feeding  the  mules  and  horses, 
he  was  to  be  repaid  by  having  the  amount  applied  in  reduction 
of  his  indebtedness  to  me  previously  incurred,  and  we  were  to 
divide  the  profits."  In  the  note  to  this  case  it  is  said:  "The 
contract  in  this  case  seems  an  exception  to  the  usual  contract  in 
cases  of  working  farms  on  shares.  Generally  the  contract  is  to 
share  the  produce,  and  this  does  not  constitute  a  partnership. 
But  here  the  agreement  was  to  share  the  profits,  and  not  ex- 
plicitly as  compensation.  Sharing  profits  as  such,  and  not  as 
compensation,  may  constitute  a  partnership." 

In  Parrish  v.  Commonwealth,  81  Va.  1,  it  is  held  that  under  the 
contract  between  Parrish  and  Mitchell,  the  latter  was  a  mere  em- 
ploye or  cropper,  and  no  tenant.  Parrish  employed  Mitchell  to 
cultivate  and  secure  the  crops  on  his  farm  during  the  current  year, 
and  agreed  to  pay  him  in  part — one-half — of  the  crops,  instead 
of  money,  for  his  labor  and  services.  Mitchell  was  entitled  to 
nothing  until  Parrish  had  been  fully  reimbursed,  out  of  Mitch- 
ell's share  of  the  crop,  for  whatever  Mitchell  might  owe  him 
for  supplies  or  otherwise.  The  court  said  that  the  arrangement 
was  only  a  mode  of  paying  for  Mitchell's  labor,  and  that  before 
a  settlement  and  division,  Mitchell  had  no  interest  in  the  corn 
and  other  crops.  And  the  court  cited  this  language,  with  approval, 
from  State  v.  Gay,  1  Hill  (S.  C),  304:  "One  who  is  entitled  to  a 
share  of  the  crop  for  his  services  on  the  plantation  of  another 
is  not  a  joint  tenant  nor  tenant  in  common  with  his  employer 
in  the  crop  produced.  It  is  exclusively  the  property  of  the  em- 
ployer, though  he  has  made  an  executory  contract  to  allow  a 
certain  portion  of  it  to  the  cropper;  and  the  latter  may  commit 
larceny  in  stealing  a  part  of  the  gathered  crop."  And  see  Mc- 
Cutchen  v.  Crenshaw  (S.  C),  19  S.  E.  140. 


§51]  ESTATES    LESS    THAN    FREEHOLD.  59 

as  a  lease,  or  as  merely  an  agreement  for  a  lease,  according  to 
what  appears  to  be  the  paramount  intention  of  the  parties." 
Taylor,  Landlord  and  Tenant,  §  38.  The  distinction  is  im- 
portant, for  it  may  happen  that  what  was  intended  by  the 
lessor  as  a  mere  agreement  for  a  future  lease  may  really 
amount  to  an  actual  present  lease,  and  thereby  the  lessee  may 
escape  covenants  which  would  have  been  imposed  on  him  if  the 
negotiation  had  amounted  to  no  more  than  an  agreement,  and 
had  required  to  be  perfected  by  an  actual  lease,  just  as  a  cow- 
tract  to  sell  land  in  fee-simple  requires  to  be  consummated  by 
a  deed  of  conveyance.     So  where  there  is  an  actual  lease,  com- 

But  it  must  not  be  supposed  that  an  agreement  for  the  cultiva- 
tion of  land  on  shares  may  not  amount  to  a  lease,  creating  be- 
tween the  parties  the  relation  of  landlord  and  tenant.  See  37 
Am.  Dec.  319,  where  it  is  said:  "In  a  large  number  of  cases  it 
is  laid  down  in  unmistakable  terms  that  if  in  a  contract  for  the 
cultivation  of  land  on  the  shares  there  are  clear  words  importing 
a  present  demise,  or  that  the  occupier  is  to  have  the  exclusive  pos- 
session of  the  land,  or  that  he  is  to  pay  or  deliver  the  owner's  por- 
tion of  the  crops  as  rent,  the  relation  between  them  is  that  of 
landlord  and  tenant."  And  see  lb.,  p.  320,  where  it  is  said:  "A 
'cropper'  is  thus  defined  in  Fry  v.  Jones,  2  Rawle  (Pa.),  11:  'If 
one  hires  a  man  to  work  his  farm  and  gives  him  a  share  of  the 
produce,  he  is  a  cropper.  He  has  no  interest  in  the  land,  and  re- 
ceives his  share  as  the  price  of  his  labor.'  That  is  to  say,  if 
the  general  possession  of  the  land  remains  in  the  owner,  and  the 
occupant  cultivates  it  for  a  share  of  the  produce  as  compensation, 
he  is  a  cropper.  The  question,  then,  in  every  case  of  cultivation 
of  land  on  the  shares  is,  Does  the  contract  give  the  owner  his 
share  as  rent,  or  the  occupant  his  share  as  compensation?  If 
the  former,  according  to  the  cases  above  cited,  the  occupant  is  a 
tenant;  if  the  latter,  he  is  a  cropper."  And  see  4  Am.  &  Eng. 
Enc.  of  Law,  897,  where  it  is  said:  "Where  the  owner  parts  with 
his  entire  possession  of  the  land  to  his  lessee  or  tenant,  and  is 
to  receive  his  half  by  way  of  rent  in  kind,  the  relation  of  ten- 
ants in  common  does  not  exist,  but  it  is  that  of  lessor  and  lessee. 
The  lessor  has  no  right  to  disturb  the  lessee  in  his  possession, 
or  to  interfere  with  or  take  his  [the  lessor's]  half;  for  the  pos- 
session of  the  land  being  in  the  lessee,  the  property  in  the  crop 
must  necessarily  follow  the  interest  in  the  land  until  the  time 
for  division." 


CO  REAL    PROPERTY.  [Chap.  4 

pletecl  by  the  lessee's  entry,  he  has  a  legal  title  for  the  term, 
and  can  resist  an  action  of  ejectment  brought  against  him 
by  the  lessor,  which  would  not  be  the  case  if  there  was  merely 
an  agreement  for  a  lease.     Price  v.  Williams,  1  M.  &  W.  6.1 

§  52.    Creation  of  Leases  for  Years. 

A.     In  England. 

(1).     At  common  law. 

(a).  Actual  lease.  By  verbal  agreement  between  lessor 
and  lessee,  followed  by  the  lessee's  entry  upon  the  land.  No 
writing  required. 

1  Agreement  fob  a  Lease. — In  Upper  Appomattox  Company  v. 
Hamilton,  83  Va.,  324,  it  is  said:  "The  language  of  the  instru- 
ment is  certainly  peculiar,  and  it  is  not  easy  to  determine  from 
its  terms  whether  a  lease,  or  merely  an  agreement  to  lease,  was 
intended.  No  set  form  of  words,  however,  is  necessary  to  con- 
stitute a  lease,  and  in  doubtful  cases,  like  the  present,  the  nature 
and  effect  of  the  instrument  must  be  determined  in  accordance 
with  the  intention  of  the  parties,  as  such  intent  may  be  collected 
from  the  whole  instrument."  And  in  Wms.  R.  P.  (17th  ed.)  561, 
it  is  said:  "The  Act  of  1845  (8  and  9  Vict.,  c.  106,  §  3),  to 
amend  the  law  of  real  property,  provided  that  a  lease  required 
by  law  to  be  in  writing  [by  the  statute  of  frauds]  of  any  ten- 
ements or  hereditaments  shall  be  void  at  law,  unless  made  by 
deed.  But  such  a  lease,  although  void  as  a  lease  for  want  of  its 
being  by  deed,  may  be  good  as  an  agreement  to  grant  a  lease, 
ut  res  magis  valeat  quam  pereat.  ...  It  does  not  require 
any  formal  words  to  make  a  lease  for  years.  The  words  com- 
monly employed  are  'demise,  lease,  and  to  farm  let';  but  any 
words  indicating  an  intention  to  give  possession  of  the  lands 
for  a  determinate  time  will  be  sufficient.  Accordingly,  it  some- 
times happened,  previously  to  the  act  of  1845,  that  what  was 
meant  by  the  parties  merely  as  an  agreement  to  execute  a  lease, 
was  in  law  construed  as  itself  an  actual  lease;  and  very  many 
lawsuits  arose  out  of  the  question  whether  the  effect  of  a  mem- 
orandum was  in  law  an  actual  lease,  or  merely  an  agreement  to 
make  one.  Thus,  a  mere  memorandum  in  writing  that  A  agreed 
to  let,  and  B  agreed  to  take  a  house  or  farm  for  so  many  years, 
at  such  a  rent,  was,  if  signed  by  the  parties,  as  much  a  lease  as 
if  the  most  formal  words  had  been  employed.  By  such  a  mem- 
orandum a  term  of  years  was  created  in  the  premises,  and  was 


§§51,52]  ESTATES    LESS    THAN    FREEHOLD.  61 

(&).  Agreement  for  a  lease,  as  distinguished  from  a  pres- 
ent actual  lease.     Verbal  agreement,  no  writing  required. 

(2).     Under  Statute  of  Frauds  (29  Car.  II.) 

(a).  Actual  lease.  If  not  exceeding  three  years,  and  if 
two-thirds  of  the  annual  value  of  the  land  be  reserved  as  rent, 
then  by  word  of  mouth,  without  writing.  But  if  for  more 
than  three  years,  or  if  less  than  two-thirds  of  the  annual 
value  be  reserved  as  rent,  then  by  writing  signed.  (See  §1  of 
Statute  of  Frauds.)  But  now  by  8  and  9  Vict.  c.  106,  §  3 
(1845),  "a  lease  required  by  law  to  be  in  writing  of  any  tene- 
ments or  hereditaments  shall  be  void  at  law  unless  made  by 
deed." 

(b).  Agreement  for  a  lease.  This  is  an  interest  in  or  con- 
cerning land,  and  so  comes  under  §  4  of  the  Statute  of  Frauds, 
and  requires  writing  signed  in  all  cases. 

B.     In  Virginia. 

( 1 ) .     At  common  law.     Same  as  in  England. 

(2).     By  statute. 

(a).  Actual  lease  (Code  of  Va.  §  2113).  If  for  more 
than  five  years,  then  by  deed;  but  if  for  five  years  or  less,  then 
by  word  of  mouth.  See  2  Min.  Ins.  (1th  ed.)  185.  There  is 
no  decision  on  this  point  in  Virginia,  but  the  above  is  believed 
to  be  the  law. 

(b).  Agreement  for  a  lease.  If  for  more  than  one  year, 
then  by  writing  signed;  for  one  year  or  less,  by  word  of  mouth. 
Code  of  Va.  §  2810.  * 

vested  in  the  lessee  immediately  on  his  entry,  instead  of  the 
lessee  acquiring,  as  at  present,  a  right  to  have  a  lease  granted  to 
him  in  accordance  with  the  agreement."  See  Sicain  v.  Ayres, 
21  Q.  B.  Div.  289.  In  Marshal  v.  Berridge,  19  Ch.  D.(  233,  it  was 
held  that  an  executory  agreement  for  a  lease  does  not  satisfy 
the  statute  of  frauds  unless  it  can  be  collected  from  it  on  what 
day  the  term  is  to  begin;  and  there  is  no  inference  that  the 
term  is  to  commence  from  the  date  of  the  agreement,  in  the  ab- 
sence of  language  pointing  to  that  conclusion. 

1  Creation  of  Leases  in  Virginia. — In  Bu.rruss  v.  Hines   (Va.), 
26  S.  E.  875   (S.  C.  3  Va.  Law  Reg.  130),  it  is  assumed   (though 


62  REAL    PROPERTY.  [Chap.  4 

§  53.  Rents  Reserved  Upon  a  Lease. — The  law  recognizes 
three  kinds  of  rent,  viz. :  (1)  Rent  services;  (2)  Bent  charge; 
and  (3)  Rent  seek.  And  besides  rents  reserved  upon  a  lease 
of  land,  there  are  also  rents  granted  out  of  land,  which  may 
be  rent  charge  or  rent  seek,  but  cannot  be  rent  service.  Rent 
service  is  the  return  of  the  vassal  made  the  lord  for  the  land 
he  held  of  him.  This  was,  therefore,  incident  to  tenure  and 
of  feudal  origin.     And  for  rent  service  not  paid  or  rendered 

not  necessary  to  the  decision  in  the  case),  that  an  agreement  for 
a  lease  for  one  year  is  unenforceable,  if  the  lease  is  to  begin  at 
a  future  date.  Thus,  if  on  the  first  day  of  January  A  makes  a 
verbal  agreement  to  rent  certain  premises  to  B  for  one  year  from 
the  first  of  February  following,  the  agreement  would  be  invalid, 
and  no  action  could  be  brought  thereon. 

If  this  view  be  correct,  as  the  agreement  is  not  for  the  lease  of 
real  estate  "for  more  than  one  year,"  it  must  be  by  reason  of 
Code  of  Va.  §  2840,  cl.  7,  which  declares  that  no  action  shall  be 
brought  "upon  any  agreement  that  is  not  to  be  performed  within 
a  year";  "from  the  making  thereof,"  being  added  as  the  meaning 
of  the  statute.  And  this  doctrine  is  sustained  by  the  weight  of 
authority.  See  17  Am.  St.  Rep.  752-'57,  note  to  Wallace  v.  Scog- 
gins,  18  Or.  502,  where  the  cases  are  collected.  And  see  the  ar- 
ticle by  Prof.  E.  H.  Bennett,  "Agreements  not  to  be  Performed 
within  one  Year,"  29  Am.  Law  Review,  481,  484  (reprinted  in  1 
Va.  Law  Reg.  553.)  See,  also,  12  Am.  &  Eng.  Enc.  Law,  p.  978, 
and  note. 

The  conflict  of  decisions  disclosed  by  the  cases  cited  by  the 
authorities  referred  to  above  is  due  to  diversity  of  opinion  on 
the  question  whether  an  agreement  to  give  a  verbal  lease  for 
one  year,  to  begin  at  a  future  date  within  one  year,  is  capable  of 
being  fully  performed,  on  the  part  of  the  lessor,  within  one  year. 
For  the  statute  does  not  require  performance  on  both  sides  within 
one  year.  See  Sedclon  v.  Rosenbaum,  85  Va.  928,  following  the 
leading  English  case  of  Donellan  v.  Read,  3  B.  and  Ad.  809.  On 
the  one  hand  it  is  contended  that  such  an  agreement  is  fully  per- 
formed by  the  lessor's  merely  giving  the  lease,  which  can  be 
done  within  one  year;  on  the  other,  it  is  claimed,  that  in  order 
to  the  full  performance  of  his  agreement  by  the  lessor,  he  must 
actually  permit  the  tenant  to  occupy  for  the  term  stated,  which, 
of  course,  could  not  be  within  one  year,  when  the  lease  for  a 
year  is  to  begin  at  a  future  date. 


§§53, 54J  ESTATES    LESS    THAN    FREEHOLD.  63 

when  due.,  the  lord  (now  landlord)  may  distrain  the  goods  and 
chattels  of  the  tenant,  as  of  common  right,  and  without  any 
agreement  to  that  effect.  Hence  the  right  of  distress  is  inci- 
dent to  rent  service;  and  this  distinguishes  rent  service  from 
rent  charge,  as  to  which  the  right  of  distress  exists  by  express 
stipulation,  and  from  rent  seek,  as  to  which  it  does  not  exist 
at  all. 

§  54.  The  Effect  of  duia  Emptores  on  Rents. — Before  this 
statute  which  abolished  subinfeudation  on  grants  of  the  entire 
fee-simple,  if  A  enfeoffed  B  of  land,  reserving  rent,  the  rent 
was  always  rent  service.  For  before  the  statute,  whether  A 
conveyed  his  entire  estate  (fee-simple),  or  any  smaller  estate 
carved  out  of  it  (in-tail,  for  life,  or  for  years),  there 
was  tenure  between  A  and  B  (feoffer  and  feoffee),  and  the 

Upon  principle,  it  would  seem  that  the  lessor  does  fully  per- 
form his  agreement  hy  giving  the  tenant  the  lease,  and  this  may 
be  (and  is  to  be),  in  the  ease  stated,  within  one  year.  A  fail- 
ure to  give  the  lease  at  the  day  named  would  be  a  breach  of  the 
lessor's  contract;  and  if  on  that  day  the  lease  is  given,  any  sub- 
sequent interference  with  the  tenant's  possession  by  the  land- 
lord would  simply  be  an  act  of  trespass.  As  for  wrongful  intru- 
sions by  third  persons,  the  tenant  must  take  care  of  himself. 
And  if  it  be  said  that  there  is  an  implied  warranty  of  quiet  en- 
joyment on  the  part  of  the  lessor,  the  reply  is  that  this  may  be 
performed  (if  the  occasion  arise)  within  one  year;  but  aside  from 
this,  that  such  obligation,  imposed  by  law,  would  no  more  make 
the  lessor's  agreement  invalid  as  not  capable  of  performance 
within  one  year,  than  would  the  implied  warranty  of  title  at- 
tached to  the  sale  of  a  chattel  make  the  verbal  agreement  to 
sell  in  one  month  unenforceable.  As  said  by  Gray,  in  Viterbo  v. 
Friecllander,  120  U.  S.  712,  the  common  law  regards  a  lease  as 
the  grant  of  an  estate  for  years,  in  which  the  lessee  takes  a  title. 
It  is  true  that  a  contract  of  personal  service  for  one  year  to  be- 
gin in  future  is  within  the  Statute  of  Frauds  {Lee  v.  Hill,  87  Va., 
497;  but  here  there  is  the  continuous  duty  of  giving  and  re- 
ceiving services. 

It  is  stated  in  the  text,  following  Professor  Minor,  that  an 
actual  lease  in  Virginia,  for  five  years  or  less,  can  be  made  by 
word  of  mouth.     Such  an  actual  lease  is  not  a  contract  for  the 


64  REAL    PROPERTY.  [Chap.  4 

rent  being  incident  to  the  tenure  was  rent  service.  And  it 
mattered  not  that  A  had  no  reversion.  Though  A  enfeoffed 
B  in  fee-simple  (to  B  and  his  heirs),  A  had  a  seignory,  and  to 
this  the  rent  and  fealty  were  incident.  This  was  the  time  of 
the  creation  of  manors,  before  the  year  1290.  But  after  quia 
emptor  es,  tenure  was  abolished  between  A  and  B,  if  A  granted 
to  B  his  entire  fee-simple;  and  B  held  not  of  A,  but  of  A's 
lord.  Hence,  the  rent  reserved  between  A  and  B  could  not 
be  incident  to  tenure,  and  so  could  not  be  rent  service.  If  the 
land  was  by  express  stipulation  charged  with  a  right  of  dis- 
tress, the  rent  was  called  rent  charge;  if  not  so  charged,  the 

lease  of  real  estate,  and  so  does  not  require  writing  under  Code 
of  Virginia,  §  2840,  cl.  6;  and  the  estate  created  thereby  does  not 
require  to  be  by  deed  by  §  2413,  because  by  supposition  it  is  not 
for  a  term  of  more  than  five  years.  It  would  seem,  therefore,  to 
be  effectual  to  all  intents  and  purposes,  as  coming  within  §  2413 
as  to  conveyances,  and  not  at  all  affected  by  the  provisions  of 
§  2840,  which  refer  only  to  promises,  contracts,  agreements,  etc. 
In  no  view,  therefore,  could  it  be  called  an  "agreement  not  to  be 
performed  within  a  year."  But  under  the  English  Statute  of 
Frauds,  in  the  corresponding  case  of  an  actual  lease  not  exceed- 
ing three  years,  upon  which  a  certain  rent  is  reserved,  it  was 
held  that  the  case  was  not  entirely  without  the  operation  of 
§  4  of  the  statute;  that  "the  leases  are  valid,  and  what  remedy 
can  be  had  upon  them  in  their  character  of  leases  may  be  re- 
sorted to;  but  they  do  not  confer  the  right  to  sue  the  lessee  for 
damages  for  not  taking  possession."  See  Inman  v.  Stamp,  1 
Starkie,  12;  Edge  v.  Strafford,  1  C.  and  J.,  391;  Lord  Bolton  v. 
Tomlin,  5  Ad.  and  E.,  856;  Wright  v.  Stavert,  2  E.  and  E.,  721; 
Smith  on  Cont.   (10S). 

As  to  the  effect  of  an  actual  lease  for  one  year,  made  verbally 
to  begin  at  a  future  date,  see  Young  v.  Dake,  5  N.  Y.  463; 
Becar  v.  Flues,  64  N.  Y.  518;  Whiting  v.  Ohlert,  52  Mich.  462 
(50  Am.  Rep.  265),  where  such  a  lease  was  sustained.  Quaere, 
under  the  Virginia  statute,  as  to  the  effect  of  an  actual  lease 
made  verbally,  for  five  years  or  less,  to  begin  in  futuro. 

In  2  Lorn.  Dig.  (93),  the  Virginia  statutes  are  quoted,  and  it 
is  said,  disregarding  the  distinction  between  an  actual  lease  and 
an  agreement  for  a  lease:  "It  would  seem,  therefore,  that  a 
mere  parol,  unwritten  demise  for  a  year  will  be  valid;  or  a 
written  demise  for  five  years  or  less;   but  a  demise  beyond  five 


§§54,55]         ESTATES    LESS    THAN    FREEHOLD.  05 

rent  was  called  rent  seel-  (dry  rent)  because  lacking  the  best 
remedy  for  its  recovery — the  right  of  distress. 

Since  quia  emptores,  the  doctrine  is  established  that  tenure 
is  incident  to  reversion.  Hence,  since  rent  service  is  incident 
to  the  tenure,  rent  service  is  incident  to  the  reversion.  Rents, 
therefore,  which  are  reserved  to  grantors,  or  assignors,  who 
convey  their  entire  interest  in  land,  cannot  be  rent  service,  but 
become  rent  charge,  or  rent  seek,  as  explained  above.1 

§  55.  Rents  Granted  Out  of  Land. — We  have  seen  the  ef- 
fect of  quia  emptores  on  rents  reserved  on  grants  of  land. 
But  rent  may  be  granted  out  of  land,  the  grantee  taking  the 
rent  only,  and  the  grantor  retaining  the  land.  These  granted 
rents  obviously  cannot  be  rent  service,  for  there  is  no  tenure 
between  the  grantor  and  grantee  of  a  rent. 

Hence,  such  rent  is  rent  charge,  if  the  land  out  of  which  it 
is  granted  is  charged  with  the  right  of  distress ;  and  rent  seek 
if  it  is  not  so  charged.  This  sort  of  rent  charge  and  rent  seek 
existed  prior  to  quia  emptores,  and  was  not  affected  by  that 
statute.  Such  a  rent  charge  is  in  common  use  now  in  England 
as  a  part  of  the  machinery  of  marriage  settlements,  the  land 

years  must  be  by  deed."  And  considering  tbe  unsettled  state 
of  tbe  law  in  Virginia,  and  tbe  difficulty  of  distinguishing  be- 
tween an  actual  contract  of  lease,  and  an  executory  agreement 
for  a  lease,  it  is  tbe  part  of  prudence  to  reduce  to  writing  all 
contracts  for  the  possession  of  land  for  more  than  one  year,  and 
also  all  such  contracts  for  one  year  only,  since  the  operation  of 
the  lease  is  often  postponed  until  a  day  subsequent  to  its  date. 

1  Rent  Service  in  Virginia. — Although  there  is  no  tenure  in 
Virginia  (see  ante,  §  7,  note  1),  yet  the  consequences  of  tenure, 
which  were  interwoven  with  the  common  law,  still  continue  as 
to  rents,  and  determine  what  is,  and  what  is  not,  rent  service. 
And  though  quia  emptores  was  abolished  in  Virginia  in  1792,  it 
is  not  considered  that  the  common  law  was  thereby  restored; 
but  tbe  doctrine  still  continues  that  rent  service  is  incident  to 
tbe  reversion.  (1  Tuck.  Com.  Bk.  2  (18);  Wins.  R.  P.  118,  note; 
Wallace  v.  Harmsteacl,  8  Wright,  492,  overruling  Ingersoll  v. 
Sergeant,  1  Whart.  337;  Lowe  v.  Miller,  3  Grat.  195.) 


66  REAL    PROPERTY.  [Chap.  4 

being  settled  on  the  eldest  son  to  be  born  of  the  contemplated 
marriage,  subject  to  a  rent  charge  in  favor  of  his  (prospec- 
tive) brothers  and  sisters.  There  are,  therefore,  now  in  Eng- 
land two  kinds  of  rent  charge  and  rent  seek,  viz. :  that  arising 
on  grants  of  rent  out  of  land,  which  is  unaffected  by  quia  emp- 
tores;  and  that  arising  when  the  grantor  of  land  reserving 
rent  has  no  reversion,  which  kind  is  created  by  quia  emptores. 

§  56.  Right  of  Distress  in  Virginia.. — In  Virginia  the 
right  of  distress  is  now  given  by  statute  as  to  all  rents  alike, 
without  express  stipulation.  Code  of  Va.  §  2787.  This  had 
been  done  in  England  by  4  Geo.  II.,  chap.  28.  And  in  Vir- 
ginia the  distress  may  be  levied  on  any  goods  of  the  lessee,  or 
his  assignee,  or  under-tenant  found  on  the  premises,  or  which 
may  have  been  removed  therefrom  not  more  than  thirty  days. 
Code  of  Va.,  §  2791;  Hutchins  v.  Commercial  Bank,  91  Va. 
68.  At  common  law,  all  goods  on  the  leased  premises, 
whether  the  tenant's  or  a  strangers,  were  liable  to  be  dis- 
trained on  for  rent ;  while,  on  the  other  hand,  no  distress  could 
be  levied  on  the  tenant's  goods  unless  they  were  found  on  the 
leased  premises.1  Clarice  v.  Millwall  Dock  Co.,  17  Q.  B.  D. 
494. 

3  Distress  for  Rent. — See  on  general  subject,  note  to  Lich- 
tenthaler  v.  Thompson  (Pa.),  15  Am.  Dec.  584-'88.  For  the  meas- 
ure of  damages  under  Code  of  Va.,  §  2898,  when  property  is  "dis- 
trained for  any  rent  not  due,"  see  Fishburne  v.  Engledove,  91 
Va.  548.  And  by  §  2791,  it  is  provided:  "If  the  goods  of  such 
lessee,  assignee  or  under-tenant,  when  carried  on  the  premises, 
are  subject  to  a  lien  which  is  valid  against  his  creditors,  his 
interest  only  in  such  goods  shall  be  liable  to  such  distress.  If 
any  lien  be  created  thereon  while  they  are  upon  the  leased  prem- 
ises they  shall  be  liable  to  distress,  but  not  for  more  than  one 
year's  rent,  whether  it  shall  have  accrued  before  or  after  the 
creation  of  the  lien."  For  the  construction  of  this  statute,  see 
City  of  Richmond  v.  Duesberry,  27  Grat,  210;  Wades  v.  Figgatt, 
75  Va.,  575;  Upper  Appomattox  Go.  v.  Hamilton,  83  Va.,  319.  For 
procedure  when  goods  are  distrained  for  rent  reserved  in  a  share 
cf  the  crop,  see  Code  of  Va.,  §  2795. 


§§55-59]        ESTATES    LESS    THAN    FREEHOLD.  67 

§  57.    Out  of  What  May  Rent  be  Eeserved. — Blackstone 

says  out  of  lands  and  tenements  corporeal  whereunto  the 
owner  (landlord)  may  have  recourse  to  distrain.  2  Bl.  Com. 
(41).  And  he  adds  that  an  annual  sum  reserved  on  the  grant 
of  an  incorporeal  hereditament,  though  recoverable  in  an 
action,  is  merely  a  personal  contract,  and  not  rent,  because 
could  be  no  remedy  by  distress,  if  it  was  in  arrears.  And  so 
no  rent,  eo  nomine,  and  with  right  of  distress,  can  be  reserved 
on  the  grant  of  a  chattel.  And  yet  there  may  be  a  personal 
contract  as  before.  But  it  seems  that  in  one  sense  rent  may 
be  said  to  issue  out  of  incorporeal  realty,  or  out  of  personalty. 
As  to  the  peculiar  remedy  by  distress,  it  can  only  issue  out  of 
land;  but  in  point  of  render  or  return,  it  may  be  considered  to 
issue  out  of  incorporeal  tenement,  as  a  common,  or  out  of 
personal  chattels.  Thus  in  Newton  v.  Wilson,  3  H.  and  M. 
(Va.)  470,  a  mill  was  leased  out,  together  with  a  negro  miller, 
reserving  rent.  But  the  negro  was,  in  fact,  a  free  man,  and 
evicted  himself  by  title  paramount.  It  was  held  that  the  rent 
abated  according  to  the  value  of  the  negro's  services,  which 
shows  that  in  point  of  render,  the  rent  was  supposed  to  issue 
out  of  both  mill  and  miller,  though  in  point  of  remedy  the 
whole  sum  stipulated  to  be  paid  was  to  be  taken  as  rent 
issuing  out  of  the  real  estate.  See  Mickie  v.  Wood,  5  Band. 
572. 

§  58.  Mode  of  Reserving  Rent. — The  best  way  to  reserve 
rent  is  to  make  it  payable  during  the  term,  without  saying  to 
whom.  This  method  is  recommended  by  Lord  Coke,  and  is 
adopted  in  the  form  of  lease  given  in  the  Code  of  Virginia, 
§  2440.  The  rent  will  then  follow  the  reversion,  and  will  go 
to  the  lessor's  heir  or  administrator  accordingly.  For  the 
questions  which  arise  when  rent  is  reserved  otherwise  than 
"during  the  term,"  see  2  Tuck.  Com.  (25) ;  Taylor  L.  and  T., 
§  156. 

§  59.  When  is  Rent  Due. — In  general,  rent  is  not  clue  un- 
til after  midnight  of  the  day  on  which  it  is  made  payable.     A 


68  REAL,    PROPERTY.  [Chap.  4 

distress,  therefore,  at  any  time  on  the  day  on  which  rent  is 
payable  would  be  premature ;  nor  would  an  action  lie  for  rent 
until  the  next  day.  Taylor  L.  and  T.,  §  391.  But  when  it 
is  necessary  to  make  a  demand  for  rent  in  order  to  enforce 
a  condition  of  re-entry  for  its  non-payment,  the  demand  must 
be  made  for  the  precise  sum  due,  on  the  clay  it  is  payable,  be- 
fore sunset  on  that  day,  on  the  premises  and  at  the  most  no- 
torious place  thereon,  or  if  there  be  a  dwelling-house,  at  the 
front  door  thereof.  See  Tied.  B.  P.  §  193.  And  this  rule  as 
to  the  necessity  for  demand  remains  unaltered  in  Virginia, 
whenever  the  lessor  desires,  by  re-entry,  to  enforce  a  condi- 
tion of  forfeiture  for  non-payment  of  rent.  See  Johnson  v. 
Hargrove,  81  Va.,  118.  But  if  an  action  of  ejectment  be 
brought  in  such  cases,  it  is  provided  by  the  Code  of  Virginia, 
§2796,  that  the  service  of  a  declaration  upon  the  tenant  in 
possession  shall  be  in  lieu  of  a  demand  and  re-entry.  But  this 
applies  to  an  action  of  ejectment  only,  and  not  to  an  action 
of  unlawful  detainer.  See  to  this  effect,  Johnston  v.  Har- 
grove, 81  Va.,  118.  For  relief  against  forfeiture  of  his  term 
by  the  tenant,  for  non-payment  of  rent  at  the  day  set,  see  Code 
of  Virginia,  §  2797  and  §  2800.  As  to  forfeiture  by  tenant, 
see  further  Guffy  v.  HuJcill,  34  W.  Va.,  49 ;  Hukill  v.  Meyers, 
36  W.  Va.,  639;  Clator  v.  Otto,  38  W.  Va.,  89;  Henderson  v. 
Carbondale,  etc.,  Co.,  140  IT.  S.  25. 

§  60.    On  the  Lessor's  Death  to  Whom  is  the  Rent  Payable  ? 

— The  general  principle  is,  that  rent  due  on  the  lessor's  death 
goes  to  the  lessor's  personal  representative  (executor  or  ad- 
ministrator) like  any  other  debt;  but  rent  not  due  on  the  les- 
sor's death  follows  the  reversion,  i.  e.,  it  goes  with  the  land, 
and  whosoever  is  entitled  to  it  receives  the  rent  also  as  inci- 
dental. As  to  rent  not  due  on  lessor's  death  see  the  follow- 
ing three  cases : 

(a).  A,  seised  in  fee,  leases  to  B  for  twenty  years,  reserv- 
ing the  rent,  and  dies  during  the  term.  The  reversion  in  fee 
passes  to  A's  heir,  and  he  is  entitled  to  the  rent.  Lightner  v. 
Sped;  (Va.),  28  S.  E.,  326. 


§§59-61]         ESTATES    LESS    THAN    FREEHOLD.  69 

(6).  A,  possessed  of  a  term  of  100  years,  subleases  it  to 
B  for  20  years,  reserving  rent,  and  dies  during  the  term. 
The  reversion  in  the  term  of  100  years  passes  to  A's  personal 
representative,  and  he  is  entitled  to  the  rent. 

(c).  A,  possessed  of  an  estate  for  his  own  life,  leases  to 
B  for  20  years,  reserving  rent,  payable  quarterly,  beginning 
on  January  1.  A  dies  on  March  1,  a  month  before  the 
quarter's  rent  becomes  due.  Here  A's  estate  ends  by  his 
death,  and  there  is  no  reversion  for  the  rent  to  follow ;  and,  at 
common  law,  B  could  quit  the  premises  and  pay  no  rent  to 
anybody  for  the  two  months  from  January  1  to  March  1. 
This  was  changed  in  England  by  statute,  requiring  B  to  pay  to 
A's  personal  representative  the  proportion  of  the  rent  for  two 
months. 

In  Virginia,  Code,  §  2809,  provides  that  B  may  hold  the 
land  to  the  end  of  the  current  year  of  the  tenancy,  paying 
rent  therefor;  and  if  paid  in  money,  the  rent  shall  be  appor- 
tioned between  the  reversioner  and  the  personal  representa- 
tives of  A.     See  also  Code  of  Va.,  §  2810. 

§  61.    Apportionment  of  Rent. 

(a).  If  the  tenant  is  evicted  by  a  stranger,  with  title  para- 
mount, of  all  the  land  demised,  he  is  excused  from  the  pay- 
ment of  any  rent  except  that  already  due  before  eviction.  But 
if  he  is  evicted  by  a  stranger  from  part  of  the  land  only,  the 
rent  is  apportioned,  and  he  must  pay  rent  for  the  residue  of 
the  land. 

(b).  If  the  tenant  is  ousted  by  the  lessor  himself  from  the 
whole,  or  any  part  of  the  land  demised,  all  rent  not  due  is 
extinguished  as  to  all  the  land.  This,  when  the  tenant  re- 
tains part  of  the  land,  is  by  way  of  forfeiture  for  the  lessor's 
wrong.  See  Briggs  v.  Hall,  4  Leigh,  484;  Tunis  v.  Grantly, 
22  Grat.  109.  See  further  as  to  rights  of  tenant  when  evicted 
or  disturbed  by  landlord,  38  Am.  St.  Rep.  485;  Rohreclit  v. 
Marling,  29  W.  Va.  765;  Hubble  v.  Cole,  85  Va.  87  (S.  C.  88 
Va.  236). 

(c).     If  a  tenant  loses  a  leased  house  without  fault  or 


70  REAL    PROPERTY.  [Chap.  4 

negligence  on  his  part,  by  fire,  flood,  etc.,  during  the  term, 
there  was  at  common  law  no  abatement  of  the  rent,  and  the 
tenant  was  compelled  to  continue  to  pay  the  whole  rent  during 
the  whole  term.  See  Taylor  L.  and  T.,  §  376;  94  Am.  D. 
662. 1  But  now  Virginia,  by  statute,  taking  effect  May  1, 
1888  (Code  of  Va.,  §  2455),  it  is  provided,  that  in  case  of 
such  destruction  by  fire  or  otherwise,  without  fault  or  negli- 
gence on  the  part  of  the  tenant,  there  shall  be  a  "reasonable 
reduction  of  the  rent  for  such  a  time  as  may  elapse  until  there 
be  again  upon  the  premises  buildings  of  as  much  value  to  the 
tenant  for  his  purposes  as  what  may  have  been  so  destroyed." 
And  the  same  doctrine  now  applies  in  Virginia  when  the  ten- 
ant is  deprived  of  the  possession  of  the  premises  by  the  public 

^n  Viterbo  v.  Friedlander,  120  U.  S.  707,  712,  it  is  said  by- 
Gray,  J.:  "The  common  law  and  the  civil  law  concur  in  holding 
that  in  the  case  of  an  executed  sale,  a  subsequent  destruction  of 
the  property  from  any  cause  is  the  loss  of  the  buyer.  Res  perit 
domino.  They  also  concur  in  holding  that  performance  of  an 
executory  obligation  to  convey  a  specific  thing  is  excused  by 
the  accidental  destruction  of  the  thing  without  the  fault  of  the 
obligor  before  the  conveyance  is  made.  But  as  to  the  nature  and 
effect  of  a  lease  for  years,  at  a  certain  rent  which  the  lessee 
agrees  to  pay,  and  containing  no  express  covenant  on  the  part  of 
the  lessor,  the  two  systems  differ  materially.  The  common  law 
regards  such  a  lease  as  the  grant  of  an  estate  for  years,  which 
the  lessee  takes  a  title  in,  and  is  bound  to  pay  the  stipulated  rent 
for,  notwithstanding  any  injury  by  flood  or  fire  or  external  vio- 
lence, at  least  unless  the  injury  is  such  a  destruction  of  the 
land  as  to  amount  to  an  eviction,  and  by  that  law  the  lessor 
is  under  no  implied  covenant  to  repair,  or  even  that  the  prem- 
ises shall  be  fit  for  the  purposes  for  which  they  are  leased.  The 
civil  law,  on  the  other  hand,  regards  a  lease  for  years  as  a  mere 
transfer  of  the  use  and  enjoyment  of  the  property,  and  holds 
the  landlord  bound,  without  any  express  covenant,  to  keep  it 
in  repair  and  otherwise  fit  for  use  and  enjoyment  for  the  pur- 
pose for  which  it  is  leased,  even  when  the  need  of  repair  or 
unfitness  is  caused  by  inevitable  accident;  and  if  he  does  not  do 
so,  the  tenant  may  have  the  lease  annulled  or  the  rent  abated." 
See  Thompson  v.  Pendell,  12  Leigh  (Va.),  591;  White  v.  Bu- 
chanan, 76  "Va.  546. 


§§  61, 62]        ESTATES    LESS    THAN    FREEHOLD.  71 

enemy.  Code,  §  2455;  Scott  v.  Scott,  18  Grat.  150,  175. 
And  it  is  also  enacted  that  no  covenant  by  a  lessee  that  he  will 
"leave  the  premises  in  good  repair"  shall  bind  him,  if  the 
buildings  thereon  are  destroyed  without  his  fault,  to  erect 
such  buildings  again,  unless  there  be  other  words  showing 
it  to  be  the  intent  of  the  parties  that  he  should  be  so  bound. 
Code,  §  2453.  For  the  harsh  rule  of  the  common  law,  see 
Boss  v.  Overton,  3  Call  308 ;  Maggort  v.  Hansbarger,  8  Leigh 
(Va.),  532. 

§  62.  Covenants  in  a  Lease. — The  usual  covenants  in  a 
modern  lease  are  said  to  be:  (1),  On  the  part  of  the  lessor, 
(a),  for  the  lessee's  quiet  enjoyment,  (&),  against  encum- 
brances, (c),  for  further  assurance,  (d),  to  keep  the  premises 
in  repair;  (2),  and  on  the  part  of  the  lessee,  {a),  to  pay  the 
rent,  (b),  to  pay  the  taxes  and  assessments,  (c),  to  keep  the 
premises  insured,  (d),  to  reside  on  the  premises,  (e),  not  to 
carry  on  certain  trades  on  the  premises,  (/),  not  to  assign  or 
sublet  the  premises,  etc.  And  some  covenants  are  implied  by 
law,  in  the  absence  of  express  stipulation.  Thus,  the  lessor, 
from  the  use  of  the  word  demise,  etc.,  impliedly  warrants 
quiet  enjoyment.  Scott  v.  Rutherford,  92  U.  S.  107.  And 
when  the  lease  is  silent  on  the  subject,  the  law  imposes  on  the 
lessor  the  duty  to  pay  the  taxes  and  assessments,  and  if  the 
tenant  is  compelled  by  the  authorities  to  pay  them,  he  may  set 
off  the  amount  against  the  landlord's  claim  for  rent.  12  Am. 
and  Eng.  Ency.  Law,  692.  On  the  other  hand,  the  law  im- 
plies a  duty  on  the  part  of  the  tenant  to  keep  the  premises  in 
repair,  and  a  failure  to  do  so  is  permissive  waste.  Kline  v. 
McLain,  33  W.  Va.  32 ;  Eoyleman  v.  R.  Co.  lb.  489.1 

1  Liability  of  Tenant  for  Permissive  Waste. — It  is  certain 
that  there  is  no  implied  covenant  on  the  part  of  the  landlord  to 
keep  the  premises  in  repair  during  the  term;  nor  is  there  any 
implied  warranty  by  the  landlord  that  a  building  leased  is  safe, 
or  that  it  is  suitable  for  the  tenant's  purposes.  In  Sutton  v. 
Temple,  12  M.  &  W.  52,  63,  Baron  Parke  said:  "With  respect 
to  the  other  and  principal  question  in  this  case,  whether  a  con- 


72  REAL    PROPERTY.  [Chap.  4 

§  63.  Do  Covenants  in  a  Lease  Bind  the  Assignee  or  Sub- 
lessee?— An  assignment  is  the  transfer  of  the  lessee's  whole 
estate  to  the  assignee;  a  sub-lease  is  the  transfer  of  less  than 
the  lessee's  whole  estate,  leaving  in  him  a  reversion,  and  creat- 

tract  or  a  condition  is  implied  by  law,  on  the  demise  of  the  land, 
that  it  shall  be  reasonably  fit  for  the  purpose  for  which  it  is 
taken.  .  .  .  The  word  'demise'  certainly  does  not  carry  with 
it  any  such  implied  undertaking;  the  law  merely  annexes  to  it 
a  condition  that  the  party  demising  has  a  good  title  in  the  prem- 
ises, and  that  the  lessee  shall  not  be  evicted  during  the  term." 
And  in  Ward  v.  Fagin,  101  Mo.  669  (20  Am.  St.  Rep.  650),  it  is 
held,  in  accordance  with  all  of  the  authorities,  that  a  landlord 
is  not  bound  to  keep  the  leased  premises  in  repair,  nor  is  he 
responsible  to  the  tenant  for  the  injuries  resulting  to  the  latter 
from  their  non-repair.  See  12  Am.  &  Eng.  Ency.  Law,  723,  1103; 
50  Am.  Dec.  776-'83,  note;  38  Am.  St.  Rep.  477,  note;  52  Id. 
884,  note. 

On  the  other  hand,  there  are  many  cases  which  sustain  the 
doctrine  of  the  text,  that  the  law  implies  a  duty  on  the  part  of 
the  tenant  to  keep  the  premises  in  repair,  and  that  a  failure  to 
do  so  is  permissive  waste.  See  2  Min.  Ins.  (4th  ed.)  614;  12 
Am.  &  Eng.  Ency.  Law,  721;  95  Am.  Dec.  121,  note;  Winclon  v. 
Stuart  (W.  Va.),  28  S.  E.  776.  But  when  it  is  asked  what  repairs 
must  the  tenant  make,  and  what  amounts  to  permissive  waste, 
it  is  difficult  to  obtain  a  satisfactory  answer  from  the  cases. 
This  is,  doubtless  due  to  a  growing  tendency  to  relieve  the  ten- 
ant from  liability  for  non-repair.  Indeed,  it  has  recently  been 
decided  in  England  (contrary  to  the  former  opinion),  that  a 
tenant  for  life  is  not  liable  for  permissive  waste  at  all  (Cart- 
wrigJit  v.  Newman,  41  Ch.  D.  532);  and  in  a  note  to  the  seven- 
teenth edition  of  Williams  on  Real  Property,  p.  565,  it  is  said  by 
the  English  editor:  "The  old  opinion  was  that  a  tenant  for 
years  was  liable  for  permissive  as  well  as  voluntary  waste.  Litt. 
§  71.  But  in  modern  times,  conflicting  opinions  have  been  ex- 
pressed on  this  point.  Heme  v.  Bemhow,  4  Taunt.  764;  Yel- 
lowly  v.  Gower,  11  Ex.  293-94;  Wooclhouse  v.  Walker,  5  Q.  B. 
D.  499,  503;  Re  Cartwright,  41  Ch.  D.  532.  As  we  have  seen, 
it  has  now  been  decided  that  a  tenant  for  life  is  not  liable  for 
permissive  waste,  and,  on  principle,  this  decision  should  govern 
the  case  of  a  tenant  for  years,  though  it  may  be  pointed  out  that 
anciently  tenants  for  life  and  [for]  years  were  equally  in  the 
position  of  farmers,  while  m  modern  times  tenants  for  life  are 


§63]  ESTATES    LESS    THAN    FREEHOLD.  73 

ing  tenure  between  the  lessee  and  sub-lessee.  The  sub-lessee 
holds  of  the  lessee,  but  the  assignee  holds  of  the  lessor. 

(a).     No  covenants  in  a  lease  bind  the  sub-lessee,  for  want 
of  privity  either  of  contract  or  of  estate. 

usually  life  owners  rather  than  farmers."  In  United  States  v. 
Bostwick,  94  U.  S.  53,  it  is  said  by  Waite,  C.  J.,  at  p.  65:  "But 
in  every  lease  there  is,  unless  excluded  by  the  operation  of  some 
express  covenant  or  agreement,  an  implied  obligation  on  the  part 
of  the  lessee  to  so  use  the  property  as  not  unnecessarily  to  injure 
it.  .  .  .  Whatever  damages  would  necessarily  result  from 
a  use  for  the  same  purposes  by  a  good  tenant  must  fall  upon 
the  lessor.  All  that  the  relation  of  landlord  and  tenant  implies 
in  this  particular  is,  that  the  tenant  while  using  the  property 
will  exercise  reasonable  care  to  prevent  damage  to  the  inheri- 
tance." And  again  at  p.  68:  "The  implied  obligation  is  not  to 
repair  generally,  but  to  so  use  the  property  as  to  make  repairs 
unnecessary,  as  far  as  possible.  It  is,  in  effect  a  covenant  against 
voluntary  waste,  and  nothing  more." 

In  2  Min.  Ins.  (4th  ed.)  615,  United  States  v.  Bostwick  is  re- 
ferred to  us  a  case  in  which  "C.  J.  Waite  propounds  some  re- 
markable views  touching  permissive  waste;  views  which  the 
writer  conceives  to  be  unwarranted  either  by  authority  or  sound 
policy,  and  contradictory  of  the  terms  of  the  statute  of  waste." 
And  the  learned  author  thus  lays  down  the  law  of  permissive 
waste,  going  to  the  opposite  extreme:  "Permissive  waste,  some- 
times called  negligent  waste,  is  generally  defined,  as  we  have 
seen,  as  a  matter  of  omission  only,  such  as  suffering  a  house  to 
fall,  or  to  be  injured,  for  want  of  necessary  reparations.  It  will 
seem,  however,  to  be  somewhat  more  comprehensive  than  this 
language  would  imply.  Thus,  if  destruction  be  done  by  a  stran- 
ger, or  a  mob;  or  if  fire,  originating  by  the  act  of  an  incendiary, 
or  by  neglect  in  a  neighboring  tenement,  consumes  the  premises, 
it  is  supposed  to  be  undeniably  waste;  and  yet,  as  it  cannot 
with  propriety  be  termed  voluntary  waste,  which  supposes  the 
action  of  the  tenant,  it  is  believed  to  fall  within  the  designation 
of  such  as  is  permissive.  Upon  this  idea,  permissive  waste  would 
include  not  only  all  destruction  arising  from  neglect  of  the  neces- 
sary reparations,  but  also  such  as  proceeds  from  the  acts  of 
strangers,  not  public  enemies,  and  from  all  casualties,  not  oc- 
casioned immediately  by  the  act  of  God."  See  the  Nitro-Glycerine 
case,  15  Wall,  524. 

As  has  been  said,  the  law  as  to  the  implied  obligation  of  the 


74  REAL.    PROPERTY.  [Chap.  4 

( b ) .  Some  covenants  in  a  lease  bind  the  assignee,  because, 
though  there  is  no  privity  of  contract  between  the  lessor  and 
assignee,  there  is  privity  of  estate  by  reason  of  the  tenure 
between  them. 

(c).  The  covenants  in  a  lease  which  bind  the  assignee  are 
such  as  run  with  the  land,  i.  e.,  such  as  are  not  collateral  to 
the  land,  but  relate  to  it  and  concern  it.  Under  this  head 
come  all  implied  covenants,  and  such  express  covenants  as  re- 
late to  things  in  esse  which  are  parcel  of  the  demise.  If  they 
relate  to  a  thing  not  in  esse,  but  which  concerns  the  demised 
premises,  as  a  wall  to  be  built  thereon,  they  do  not  bind  the 
assignee,  unless  the  lessee  covenanted  for  himself  and  his 
assigns.  Otherwise  if  it  were  to  repair  a  wall  already  on  the 
premises.    Wms.  E.  P.  (397) ;  Tayl.  L.  and  T.  §  260.     But 

tenant  to  keep  the  premises  in  repair  seems  to  be  undergoing 
change,  and  even  when  the  landlord  is  under  no  contract  obliga- 
tion to  repair,  it  is  believed  to  be  usual  for  reparations  to  be 
voluntarily  made  by  him,  and  not  by  the  tenant. 

In  95  Am.  Dec.  121,  note,  the  law  is  thus  laid  down  as  to  the 
tenant's  implied  duty  to  repair:  "It  is  not,  however,  an  obliga- 
tion resting  upon  the  tenant  to  repair  generally,  but  only  to 
keep  the  premises  in  as  good  repair  as  he  receives  them,  ordinary 
wear  and  tear,  and  accidental  injuries  excepted.  Thus  in  the 
case  of  buildings,  a  tenant  from  year  to  year  is  bound  to  keep 
them  wind  and  water-tight,  in  the  absence  of  any  special  agree- 
ment on  the  subject;  but  is  not  bound  to  make  substantial  and 
lasting  repairs,  such  as  putting  on  a  new  roof;  nor  is  he  bound 
to  rebuild  when  the  premises  have  accidently  become  ruinous,  or 
are  destroyed,  unless  by  special  agreement.  But  it  is  the  duty 
of  a  farm  tenant  to  make  all  needed  current  repairs  on  fences 
in  the  absence  of  a  contrary  covenant.  This  implied  duty  grows 
out  of  the  occupancy  of  the  land."  See  12  Am.  &  Eng.  Ency. 
Law,  720,  note.  And  see  Windon  v.  Stuart  (W.  Va.)  28  S.  E. 
776,  where  it  is  said,  that  a  tenant  must  make  ordinary  repairs 
to  buildings,  repair  and  keep  up  fences,  remove  and  keep  down 
filth,  such  as  elders,  briars,  etc.,  growing  on  farming  and  graz- 
ing lands,  at  his  own  expense,  unless  otherwise  provided  in 
the  lease. 


§§63,64]        ESTATES    LESS    THAN    FREEHOLD.  75 

now  in  Virginia  all  covenants  extend  to  assigns  without  ex- 
press mention  of  them.     Code  of  Virginia,  §  2445.  * 

§  64.  Examples  of  Covenants  Running  with  the  Land. — 
We  have  seen  that  all  implied  covenants  run  with  the  land, 
and  are  binding  on  the  assignee,  but  not  on  the  sub-lessee; 

1  Assignees  and  Sublessees. — For  the  distinction  between  an 
assignment  and  a  sublease,  see  15  Am.  Dec.  543-545,  note.  It  is 
there  said:  "The  lessor  has  against  the  assignee  of  the  lessee 
the  same  right  of  action  that  he  has  against  the  original  lessee 
for  the  breach  of  all  covenants  in  the  lease  that  are  annexed  to 
the  estate  [i.  e.,  which  run  with  the  land]  as  long  as  he  [i.  e., 
the  assignee]  is  in  possession.  .  .  .  Between  the  lessor  and 
the  under-tenant  of  the  original  lessee  [i.  e.,  the  sub-lessee] 
there  is  neither  privity  of  estate  nor  privity  of  contract;  the 
lessor,  therefore,  cannot  sue  the  under-tenant  upon  the  lessee's 
covenant  to  pay  rent."  And  see  10  Am.  St.  Rep.,  557-565,  note, 
where  there  is  a  full  discussion  of  the  assignment  of  leases, 
and  the  respective  rights  and  liabilities  of  the  lessor,  assignor 
and  assignee  thereafter.  It  is  there  laid  down  that  "the  lessee 
of  land,  notwithstanding  his  assignment  of  the  lease,  continues 
liable  upon  express  covenant  therein.  The  reason  of  this  rule 
is,  that  although  by  the  assignment  the  privity  of  estate  be- 
tween the  lessor  and  lessee  is  terminated,  there  still  remains 
the  privity  of  contract  between  them  created  by  the  lease,  which 
is  not  affected  by  the  assignment,  although  made  with  the  assent 
of  the  lessor.  .  .  .  Thus  the  assignment  of  a  lease  does  not 
annul  the  lessee's  obligation  on  his  express  covenants  to  pay 
rent,  even  though  the  lessor  has  accepted  the  assignee  as  his 
tenant,  and  collected  rent  from  him."  And  see  to  the  same 
effect,  1  Am.  St.  Rep.  83,  and  note;  Washington  Natural  Gas  Co. 
v.  Johnson,  123  Pa.  St.  R.,  576  (10  Am.  St.  Rep.  553).  But  it 
should  be  remembered  that  the  above  doctrine  of  continued 
liability  of  lessee  after  assignment  applies  only  to  the  lessee's 
express  covenants,  and  not  to  those  implied  by  law.  1  Washb. 
R.  P.  (326);  Tayl.  L.  &  T.,  §  371;  10  Am.  St.  Rep.  563.  We  have 
seen  that  the  assignee  of  a  lease  is  liable  to  the  lessor  on  cov- 
enants which  run  with  the  land.  But  this  liability,  being  based 
on  privity  of  estate,  continues  so  long  only  as  the  assignee  re- 
tains the  lease;  and  can  be  terminated  by  him  at  any  time  by 
assigning  over  to  another.  Farmers  Bank,  v.  Mutual,  etc..  Society, 
4   Leigh    (69),    (84).     And   though,   as   we   have   seen,   the   sub- 


76  REAL,    PROPERTY.  [Chap.  4 

and  also  that  express  covenants  run  with  the  land  when 
they  relate  to  or  concern  it,  but  not  when  they  are  collateral 
or  aside  from  the  land.  Applying  this  distinction,  covenants 
to  cultivate  land  in  a  particular  manner;  to  maintain  a  par- 
ticular fence,  etc.,  run  with  the  land;  but  a  covenant  to  pay 
the  debt  of  a  third  person  does  not  run  with  the  land;  nor 
would  a  covenant  to  keep  up  a  fence  on  other  land  belonging 
to  the  lessor,  but  which  was  not  parcel  of  that  demised  to  the 
tenant.  But  a  covenant  to  renew  the  lease  runs  with  the  land 
in  favor  of  the  assignee.1 

lessee  is  not  bound  by  the  lessee's  covenant  to  pay  the  rent,  and 
the  lessor  can  maintain  no  action  thereon  against  the  sub-lessee, 
for  want  of  privity  either  of  contract  or  estate,  it  must  not  be 
supposed  that  the  goods  of  the  sub-lessee  in  possession  cannot 
be  distrained  by  the  lessor  for  the  lessee's  rent.  The  right  to 
distrain  follows  the  land;  for  otherwise,  by  the  lessee's  sub- 
lease, the  lessor  would  lose  his  right  of  distress  altogether.  See 
Tayl.  L.  &  T.,  §  109;  15  Am.  Dec.  554.  And  the  Code  of  Virginia 
expressly  declares  (§  2791)  that  the  distress  may  be  "levied  on 
any  goods  of  the  lessee,  or  his  assignee,  or  under-tenant.'''  Hutch- 
ins  v.  Commercial  Bank,  91  Va.,  68,  77. 

Covenants  Running  with  the  Land. — Besides  the  examples 
given  in  §  64,  the  following  covenants  are  held  to  run  with  the 
land:  To  insure  if  the  insurance  is  to  be  laid  out  in  rebuilding; 
to  discharge  the  lessor  from  taxes  and  assessments;  not  to  carry 
on  particular  trades;  not  to  erect  certain  buildings,  etc.  See 
Tayl.  L.  &  T.,  §§  261,  262;  2  Min.  Ins.  (4th  ed.),  797;  15  Am.  Dec. 
545;  West  Virginia,  etc.,  R.  Co.  v.  Mclntire,  28  S.  E.  696.  For  a 
full  discussion  of  covenants  restricting  the  use  of  land,  see  21 
Am.  St.  Rep.  484-508;  Hubble  v.  Cole,  85  Va.,  87.  As  to  covenants 
to  renew  leases,  see  Upper  Appomattox  Company  v.  Hamilton, 
83  Va.,  319,  325,  where  the  lease  was  held  not  to  be  a  "renewed 
and  extended  lease,"  as  was  contended  by  counsel;  "for  it  was 
not  made  in  pursuance  of  any  covenant  or  stipulation  contained 
in  the  original  lease,  and  it  not  only  created  a  new  term  after 
the  regular  expiration  of  the  first,  but  it  prescribes  terms  and 
conditions  materially  different  in  several  particulars  from  those 
contained  in  the  original  lease."  In  James  v.  Kibler  (Va.),  26 
S.  E.,  417,  it  is  held  that  a  lease  for  five  years,  with  a  provision 
that  if  at  the  end  of  the  five  years  the  lessee  desires  to  retain 


§§  64-66]        ESTATES    LESS    THAN    FREEHOLD.  77 

§  65.  Tenancy  from  Year  to  Year. — This  is  considered  an 
estate  for  }rears;  and  the  best  way  to  create  this  kind  of  ten- 
ancy is  to  let  the  lands  to  hold  "from  year  to  year"  simply, 
without  saying  more.  Wms.  E.  P.  (392).  But  a  tenancy 
from  year  to  year  frequently  arises  by  implication,  as  to  which 
see  infra  under  "Estate  at  Will."  But  a  lease  from  year  to 
year  is  much  more  advantageous  to  both  landlord  and  tenant 
than  a  lease  at  will.  In  the  language  of  Williams :  "The  ad- 
vantage consists  in  this,  that  both  landlord  and  tenant 
are  entitled  to  notice  before  the  tenancy  can  be  terminated  by 
the  other  of  them.  This  notice  must  be  given  at  least  half  a 
year  before  the  expiration  of  the  current  year  of  the  tenancy; 
for  the  tenancy  cannot  be  terminated  by  one  only  of  the 
parties,  except  at  the  end  of  any  number  of  whole  years  from 
the  time  it  began.  So  that  if  the  tenant  enter  on  any  quarter 
day,  he  can  quit  only  on  the  same  quarter  day;  when  once  in 
possession,  he  has  a  right  to  remain  for  a  year;  and  if  no 
notice  to  quit  be  given  for  half  a  year  after  he  has  had  posses- 
sion, he  will  have  a  right  to  remain  two  whole  years  from  the 
time  he  came  in;  and  so  on  from  year  to  year."  Wins.  E.  P. 
(390). 

§  66.  Notice  to  Quit. — For  a  full  discussion  of  this  sub- 
ject, see  Stedman  v.  Mcintosh,  4  Iredell's  Law  (1ST.  C),  291; 
S.  C.  42  Am.  Dec.  122,  and  .note  125-140.  A  tenant  whose 
lease  is  for  one  year,  or  for  a  certain  number  of  years,  is 
not  entitled  to  notice  to  quit;  for  he  knows  beforehand  just 
when  his  lease  will  expire.  So  tenants  at  will  are  liable  to 
be  dispossessed  at  any  time;  and  are  at  common  law  not  en- 
titled to  notice  to  quit,  except  when  the  landlord  takes  this 
means  of  terminating  the  estate,  which  he  may  do  whenever 

the  premises  for  the  next  five  years,  he  may  do  so  on  giving 
six  months'  notice,  is  not  a  present  lease  for  ten  years;  and  so 
does  not  require  to  be  by  deed  under  the  statute  of  conveyances, 
Code  of  Virginia,  §  2413.  For  a  case  in  which  specific'  perform- 
ance was  granted  of  a  covenant  to  renew  a  lease  for  ninety-nine 
years,  see  Selden  v.  Camp  (Va.),  28  S.  E.  877. 


78  REAL    PROPERTY.  [Chap.  4 

he  chooses.  But  a  tenancy  from  year  to  year  requires,  as  we 
have  seen  above,  a  half  year's  notice  to  terminate  it  at  common 
law;  or,  as  it  is  usually  put,  six  months'  notice  before  the  ex- 
piration of  the  current  year  of  tenancy.  But  the  Virginia 
statute  now  enacts  (Code,  §  2785)  :  "A  tenancy  from  year  to 
year  may  be  terminated  by  either  party  giving  notice,  in  writ- 
ing, prior  to  the  end  of  any  year,  for  three  months,  if  it  be  of 
land  within,  and  for  six  months,  if  of  land  without  a  city  or 
town,  of  his  intention  to  terminate  the  same."  The  statute 
also  provides  upon  whom  the  notice  may  be  served,  whether 
given  by  the  landlord  or  tenant;  and  that  the  parties  may 
contract  by  special  agreement  that  no  notice  shall  be  given.1 

1  Estoppel  of  Tenant  to  Deny  Landlord's  Title. — It  is  well 
settled  that  a  tenant  who  receives  possession  of  land  from  another 
as  his  landlord  is  estopped  to  deny  the  latter's  title  in  the  premises 
demised.  Nil  habuit  in  tenementis  is  not  a  good  plea  to  the  land- 
lord's action  for  rent.  The  aoctrine  has  been  considered  of  feudal 
origin,  but  this  seems  to  be  a  mistake.  See  Wms.  R.  P.  (247),  note 
2,  where  the  rule  is  said  to  be  of  recent  introduction,  and  to  be 
intended  to  prevent  a  tenant  from  compelling  his  landlord  to 
prove  his  title  in  an  action  of  ejectment,  in  which  the  rule  is 
that  the  plaintiff  must  recover  on  the  strength  of  his  own  title, 
and  not  on  the  weakness  of  his  adversary's,  so  that  but  for  the 
estoppel  the  tenant,  though  having  no  title  himself,  could  not 
be  compelled  to  restore  the  possession  to  a  landlord  whose  title 
was  defective.  But  in  Bigelow  on  Estoppel,  349,  while  it  is  ad- 
mitted that  the  rule  is  modern,  a  different  explanation  is  given 
of  its  origin,  to  which  the  reader  is  referred.  For  a  discussion 
of  the  general  rule  and  its  exceptions,  see  1  Greenl.  Ev.,  §  25; 
2  Bl.  Com.  (143)  n.  5;  13  Am.  Dec.  68-92,  note;  69  Id.  510-511. 
In  13  Am.  Dec.  68  it  is  said:  "There  is  some  conflict  in  the  de- 
cisions upon  the  point  as  to  whether  when  one  who  is  already 
in  possession  of  land  accepts  a  lease  thereof  from  a  claimant  of 
the  same  from  whom  he  did  not  receive  the  possession,  he  is  or 
is  not  estopped  from  denying  the  title  of  such  claimant,  and 
whether,  if  he  is  estopped,  such  estoppel  endures  after  the  ex- 
piration of  the  term.  The  difficulty  upon  this  head  arises  from 
the  fact  that  the  estoppel  of  a  tenant  to  deny  his  landlord's 
title  is  commonly  founded  upon  the  position  that,  having  re- 
ceived the  possession  under  such  title,  he  is  bound  in  equity  and 


§§  66, 67]        ESTATES    LESS    THAN    FREEHOLD.  79 

II.     Estate  at  will. 

§  67.  Creation  of  Estates  at  Will. — This  estate  may  be 
created  by  the  express  or  implied  agreement  of  the  parties, 
or  it  may  arise  by  construction  of  law.  Thus  the  parties  may 
agree  in  terms  that  the  lessee  shall  hold  at  the  will  of  lessor; 
and  then  "as  he  may  be  turned  out  when  his  landlord  pleases, 
so  he  may  leave  when  he  likes."  Wms.  E.  P.  (389) ;  Cowan 
v.  Radford  Iron  Co.,  83  Va.  547.  Again,  if  under  an  agree- 
ment for  a  lease,  the  tenant  enters,  but  no  certain  period  of 
holding  is  fixed,  and  the  tenant  either  pays  no  rent,  or  pays 
it  without  reference  to  a  year's  holding,  this  is  impliedly  a 
tenancy  at  will.  But  if  under  such  a  lease  the  tenant  enters 
and  pays  an  annual  rent,  or  rent  with  reference  to  a  year,  he 
then  becomes  a  tenant  from  year  to  year.  See  Braythivayte 
v.  Hitchcock,  10  M.  &  W.  494;  Wms.  E.  P.  (389) ;  Tied.  E.  P. 
§  214;  42  Am.  Dec.  128.  A  mortgagor  in  possession  is  con- 
structively a  tenant  at  will  to  the  mortgagee;  and  so  is  a 
vendee  of  land,  who  enters  under  a  contract  of  purchase,  but 
who  has  not  received  a  deed,  and  such  vendee  cannot  be  ousted 
without  previous  demand  or  notice  by  the  vendor.  William- 
good  conscience  to  restore  the  possession  to  him  from  whom  he 
had  it  before  he  undertakes  to  dispute  his  title." 

In  Jordan  v.  Katz,  89  Va.  628,  it  is  held  that  the  general  rule 
that  a  tenant  cannot  deny  his  landlord's  title  is  not  affected  by  the 
fact  that  the  tenant  is  in  actual  possession  at  the  time  he  ac- 
cepts the  lease;  and  that  by  such  acceptance  he  as  effectually 
recognizes  the  title  and  possession  of  the  lessor  as  if  he  had  en- 
tered and  taken  possession  under  and  by  virtue  of  the  lease  itself. 
But  in  that  case  there  was  no  proof  of  fraud,  imposition  or  un- 
fairness; and  if  it  should  appear  that  the  tenant  was  induced  to 
accept  the  lease  through  the  landlord's  fraud  or  misrepresenta- 
tions the  tenant  would  not  be  estopped.  See  Emerick  v.  Tavener, 
9  Grat.  220;  Creigh  v.  Benson,  10  Id.  231;  Alclerson  v.  Miller, 
15  Id.  279;  Dobson  v.  Culpepper,  23  Id.  352,  361;  Allen  v.  Paul,  24 
Id.  332;  Wilcher  v.  Robertson,  78  Va.  602;  Locke  v.  Frasher,  79 
Va.  409;  Rakes  v.  Rustin  Land,  etc.,  Co.  (Va.),  22  S.'E.  498;  13 
Am.  Dec.  6S.  For  the  law  in  West  Virginia,  see  Campbell  v. 
Fetterman,  20  W.  Va.  398;   Yoss  v.  King,  33  W.  Va.  236. 


80  REAL,    PROPERTY.  [Chap.  4 

son  v.  Paxton,  18  Grat.  475;  Twyman  v.  Hawley,  24  Id.  499; 
Locke  v.  Frasher,  79  Va.  409;  Jones  v.  Temple,  87  Va. 
210. 

For  the  rights  which  an  estate  at  will  confers,  and  the 
means  hy  which  it  may  be  terminated,  see  2  Bl.  Com.  (146). 

III.     Estate  by  Sufferance. 

§  68.  Tenants  by  Sufferance. — "A  tenant  by  sufferance  is 
one  that  comes  into  possession  of  land  by  lawful  title,  but 
holdeth  over  by  wrong  after  the  determination  of  his  interest. 
He  has  only  a  naked  possession,  and  no  estate  which  he  can 
transfer  or  transmit,  or  which  is  capable  of  enlargement  by 
release;  for  he  stands  in  no  privity  to  his  landlord,  nor  is  he 
entitled  to  notice  to  quit."  4  Kent's  Com.  117;  42  Am.  Dec. 
130.  Thus,  if  the  tenant  holds  over  by  the  laches  of  the  land- 
lord, without  fresh  leave  or  permission,  he  is  a  tenant  by  suf- 
ferance; but  when  the  tenant  by  the  landlord's  permission 
holds  over  after  the  expiration  of  the  term,  the  presumption  is 
that  he  is  tenant  from  year  to  year,  though  this  may  be  re- 
butted. Thus  in  Allen  v.  Bartlett,  20  W.  Va.  46,  it  is  held 
that  where  the  tenant  holds  over  after  the  expiration  of  his 
lease,  and  the  lessor  receives  rent  accruing  subsequently  to  the 
expiration  of  the  term,  or  does  any  act  from  which  it  may 
be  inferred  that  he  intends  to  recognize  him  still  as  such  ten- 
ant, he  becomes  thereby  tenant  from  year  to  year,  upon  the 
conditions  of  the  original  lease.  See  also  Crawford  v.  Morris, 
5  Grat.  107;  Emerick  v.  Tavener,  9  Id.  220;  Creigh  v.  Hen- 
son,  10  Id.  231;  Harrison  v.  Middleton,  11  Id.  527;  Pierce  v. 
Grice,  92  Va.  763;  Voss  v.  King,  38  W.  Ya.  607. 

To  regain  the  possession  from  a  tenant  by  sufferance,  the 
landlord  may  enter  peaceably,  or  he  may  bring  ejectment. 
And  in  Virginia  a  very  summary  remedy  is  given  the  land- 
lord— an  action  for  unlawful  detainer.     See  Code,  §  2716. 

§  69.  Emblements  when  an  Estate  is  Less  than  Freehold. — 
For  the  definition  of  emblements,  see  §  11  supra.  As  to  the 
right  of  tenant  for  life  to  emblements,  see  2  Bl.  Com.  (122) ; 


§§67,68]         ESTATES    LESS    THAN    FREEHOLD.  81 

also  §  44,  supra.  When  tlie  tenant  holds  for  a  certain  number 
of  years,  the  doctrine  is  that  he  is  not  entitled  to  emblements ; 
afor  the  tenant  knew  the  expiration  of  his  term,  and,  there- 
fore, it  is  his  own  folly  to  sow  what  he  could  never  reap  the 
profits  of."  2  Bl.  Com.  (145).  In  England,  however,  the 
tenant  for  a  term  certain  may  be  entitled,  as  emblements,  to 
the  crops  sown  before  his  lease  expires  (called  the  way-going 
crops),  by  the  particular  custom  of  the  district  where  the  land 
is  situated.  See  Wigglesworth  v.  Dallison,  1  Doug.  201.  But 
it  is  settled  that  no  particular  custom  of  this  kind  can  exist  in 
Virginia,  and  in  Harris  v.  Carson,  7  Leigh,  630,  it  is  held: 
(1)  That  at  common  law  where  land  is  leased  for  a 
fixed  and  determinate  period,  the  offgoing  tenant  is  not  enti- 
tled to  the  waygoing  crop;  (2)  That  parol  evidence  of  a  usage 
for  the  offgoing  tenant  to  have  the  waygoing  crop  is  not  ad- 
missible to  explain  a  written  contract  of  lease  for  a  fixed  and 
certain  period;  and  (3)  That  a  practice  or  usage  in  opposi- 
tion to  the  common  law,  however  general  it  may  be,  has  no 
force  in  Virginia  on  the  ground  of  custom,  because  not  imme- 
morial. But  in  other  States  the  offgoing  tenant  has  been  al- 
lowed the  waygoing  crop  on  the  ground  of  usage  and  custom ; 
immemoriality  not  being  so  strictly  insisted  on  as  to  make 
such  a  custom  impossible  in  America.  See  Stultz  v.  Dickey, 
5  Binn.  (Pa.)  285.1 

1  Usage  ix  Virginia. — In  Reese  v.  Bates  (Va.),  26  S.  E.  865 
(3  Va.  Law  Reg.  136),  it  is  said:  "It  is,  of  course,  well  settled 
that  a  usage  in  opposition  to  the  common  law,  however  general 
it  may  be,  has  no  force  in  this  country  on  the  ground  of  cus- 
tom (Harris  v.  Carson,  7  Leigh,  632),  and  there  is  no  customary 
law  in  Virginia  which  per  se  can  vest  a  right  in  a  party  claim- 
ing under  it  (Delaplane  v.  Crenshaw,  15  Grat.  457);  but  a  usage 
or  custom  of  trade  may  be  shown."  See,  as  to  such  usage  of 
trade,  Hansbrough  v.  Neal  (Va.),  27  S.  E.  593;  Southwest  Land 
Co.  v.  Chase  (Va.),  27  S.  E.  826;  Reese  v.  Bates,  supra. 

In  2  Min.  Ins.  (4th  ed.)  105,  it  is  said  with  reference  to  Harris 
v.  Carson,  that  if  the  lease  were  not  in  writing,  perhaps  the 
usage  might  be  provable,  if  it  were  shown  that  the  parties  prob- 
ably contracted  with  reference  to  it.     For  cases  in  which  Harris 

6 


82  REAL    PROPERTY.  [Chap.  4 

A  tenant  at  will  is  entitled  to  emblements  when  the  tenancy 
is  determined  by  the  landlord.  2  Bl.  Com.  (146)  ;  Harris  v. 
Frank,  49  N.  Y.  24.  But  a  tenant  by  sufferance  is  said  not  to 
be  entitled  to  emblements.  Doe  v.  Turner,  7  M.  &  W.  226 ;  1 
Washb.  E.  P.  (103). 

v.  Carson  was  distinguished  and  the  tenant  allowed  to  reap  the 
waygoing  crop,  see  Mason  v.  Moyers,  2  Rob.  (Va.)  (606);  Kelly 
v.  Todd,  1  W.  Va.  197. 


CHAPTER  V. 


DESCENTS. 


§  70.  Introductory. — "Property  of  lands  by  descent,"  says 
Lord  Bacon,  "is  where  a  man  hath  lands  of  inheritance,  and 
dieth,  not  disposing  of  them,  but  leaving  them  to  go  (as  the 
law  casteth  them)  to  the  heir.  This  is  called  a  descent  of 
law."  Bac.  Law  Tracts,  128.  For  the  distinction  between 
descent  and  purchase,  see  2  Bl.  Com.  (201)  n.  1.  The  heir 
is  the  only  person  who  by  law  becomes  the  owner  of  land  with- 
out his  own  agency  or  assent.  A  title  by  deed  or  devise  re- 
quires the  assent  of  the  grantee  or  devisee  before  it  can  take 
effect.1  But  in  the  case  of  descent,  the  law  casts  the  title  on 
the  heir  without  any  regard  to  his  wishes  or  election.  He 
cannot  disclaim  it  if  he  wishes  to  do  so.  3  Wash.  R.  P.  (402). 
And  an  heir  at  law  cannot  be  disinherited  by  any  wish  ex- 
pressed in  a  will,  however  strong,  that  he  should  not  inherit, 
unless  the  estate  is  actually  devised  to  some  other  person.  All 
the  real  estate  of  inheritance  which  the  testator  does  not  dis- 
pose of  otherwise  goes  to  the  heir  by  descent — cast  upon  him 

1  Disclaimer. — In  GuggenJieimer  v.  Lockridge  (W.  Va.),  19  S. 
E.  874,  it  is  held:  "A  deed  must  not  only  be  delivered  by  the 
grantor,  but  must  be  accepted  by  the  grantee.  Acceptance  may 
be  express  by  signing  the  deed  or  otherwise,  or  may  be  implied 
from  circumstances.  The  asset  of  the  grantee  will  be  presumed 
when  the  deed  is  beneficial  to  him  until  dissent  appear.  Where 
dissent  or  disclaimer  appears  the  deed  is  inoperative,  and  the 
title  to  the  thing  granted  reverts  to  the  grantor  by  remitter  from 
such  disclaimer."  As  to  mode  of  disclaimer,  it  is  said  in  Buttle 
v.  Richmond,  etc.,  R.  Co.,  76  Va.  284,  286:  "It  has  been  long  set- 
tled in  this  State  that  the  disclaimer  of  a  freehold  can  only 
be  by  deed  or  in  a  court  of  record.  See  the  case  of  Bryan  v. 
Hyre,  1  Rob.   (Va.)   101,  a  conclusive  authority  on  this  subject." 

83 


84  REAL.    PROPERTY.  [Chap.  5 

by  the  law.  Doe  v.  Lanius,  3  Ind.  441 ;  Mclntire  v.  Cross,  lb. 
444;  Irwin  v.  Zane,  15  W.  Va.  616;  Graham  v.  Graham,  23 
W.  Va.  36;  Coffman  v.  Coffman,  85  Va.  459. 2 

The  term  "ancestor,"  as  used  in  a  statute,  means  any  one 
from  whom  an  estate  is  inherited.  In  this  sense  an  infant 
brother  may  be  the  ancestor  of  an  adult  brother,  or  the  child 
of  its  father.  Prickett  v.  Parker,  3  Ohio  St.  394.  Upon  the 
death  of  the  ancestor,  the  real  estate  he  may  leave  undevised 
vests  at  once  in  the  heir,  subject  to  be  divested  if  needed  for 
the  payment  of  the  ancestor's  debts.  Chubb  v.  Johnson,  11 
Tex.  469 ;  Wilson  v.  Wilson,  13  Barb.  252.  And  the  law  pre- 
sumes descent  to  the  heir  until  a  devise  is  affirmatively  shown. 

2  Inheritance  from  Murdered  Ancestor. — Can  an  heir  appar- 
ent who  murders  his  ancestor,  in  order  to  inherit  his  land,  take 
title  thereto  by  descent,  notwithstanding  his  crime?  See  this 
question  discussed  in  1  Va.  Law  Reg.  383,  847.  In  Shellenberger 
v.  Ransom,  31  Neb.  61  (28  Am.  St.  Rep.  500),  it  was  held  that  a 
father  who  has  wilfully  murdered  his  child  for  the  purpose  of 
acquiring  her  estate,  cannot  inherit  as  her  heir;  and  that  a  pur- 
chaser from  the  father  acquires  no  title  to  the  child's  estate, 
which  passes  at  her  death  to  her  other  heirs.  But  in  Shellen- 
berger  v.  Ransom,  41  Neb.  631  (59  N.  W.  935),  the  previous  de- 
cision is  reversed,  and  it  was  held  that  under  the  statute  of  de- 
scents of  Nebraska  a  man  may  inherit  the  property  of  one  whom 
he  kills  for  that  purpose.  On  the  other  hand,  in  Riggs  v.  Palmer, 
115  N.  Y.  506  (12  Am.  St.  Rep.  819),  it  was  held  (Gray,  J.,'  dis- 
senting) that  one  who  murders  his  ancestor,  or  a  testator,  in 
order  to  attain  property  as  heir  or  devisee,  will  not  be  allowed 
to  acquire  title  by  crime. 

The  difficulty  in  denying  title  to  a  murderer  heir  or  devisee 
arises  from  the  fact  that  no  such  exception  is  made  by  the  stat- 
utes of  descents  or  wills;  and  it  is  claimed  that  an  exception 
made  by  the  courts  is  judicial  legislation.  On  this  point  it  is 
said  by  Judge  Thompson,  in  The  American  Law  Review,  No- 
vember-December, 1894,  p.  919:  "The  true  way  to  reason  upon 
such  a  question  is  to  consider  whether  the  legislature  ever  in- 
tended to  authorize  or  sanction  such  a  result.  The  right  is 
statutory.  Is  it  to  be  supposed  that  the  legislature,  in  enacting 
the  statute  and  creating  the  right,  intended  that  the  right  should 
extend  to  a  man  who  should  bring  himself  within  the  letter  of 


§  70]  DESCENTS.  85 

The  heir  need  never  prove  his  ancestor's  intestacy ;  the  devisee 
must  prove  the  will.  Baxter  v.  Bradbury,  20  Me.  260 ;  Lyon 
v.  Kain,  36  111.  368;  3  Wash.  B.  P.  (414).  And  as  a  title 
by  descent  is  deemed  worthier  than  a  title  by  devise,  the  com- 
mon law  rule  was  that  if  an  ancestor  devised  to  his  heir  just 
the  estate  in  quantity  and  quality  which  he  would  have  taken 
by  descent,  the  heir  should  be  deemed  to  take  by  descent,  and 
not  by  devise.  Hoover  v.  Gregory,  10  Yerg.  444;  Posey  v. 
Budd,  21  Md.  480;  Biedler  v.  Biedler,  87  Va.  300;  Wms.  E. 
P.  (218).  But  now  by  the  statute  of  3  and  4  Wm.  4,  c.  106, 
§  3,  such  heir  shall  be  considered  to  have  acquired  the  land 
as  a  devisee  and  not  by  descent. 

By  the  civil  law,  one  may  designate  or  appoint  his  heir. 
Bisph.  Eq.  §  50.  But  the  maxim  of  the  common  law  is, 
solus  deus  faeit  hceredem  non  homo,  and  heirship  depends  on 
consanguinity.1     The  title  of  the  heir  is  called  into  existence 

the  statute  by  committing  the  crime  of  murder?  .  .  .  Another 
and  a  just  way  of  viewing  it  is  to  consider  that  but  for  the  crime 
of  the  heir  in  murdering  his  ancestor,  he  might  die  in  advance 
of  his  ancestor,  so  that  some  other  person  would  inherit  under 
the  statute.  He  thus  by  crime  seizes  that  which  otherwise  might 
never  come  to  him.  He  is  no  heir  until  murder  makes  him  so, 
for  nemo  est  luvres  viventis.u 

Perhaps  the  true  view  to  take  of  the  question  is,  as  has  been 
suggested,  that,  in  spite  of  the  crime,  the  legal  title  passes  to 
the  heir  or  devisee  in  accordance  with  the  statutes;  but  that 
equity  will  not  allow  the  murderer  to  profit  by  his  own  wrong, 
and  will  consider  him  to  hold  the  legal  title  for  the  benefit  of 
others,  thus  making  of  him  a  trustee  ex  delicto  on  the  same  prin- 
ciple by  which  those  who  obtain  the  legal  title  to  property  by 
fraud  are  held  to  be  trustees  ex  maleficio.  See  Bispham's 
Equity,  §  218. 

1  Children  by  Adoption. — See  now  in  Virginia,  Acts  1891-'92, 
p.  262  c.  170  (amended  by  Acts  1897-98,  p.  38  c.  39),  legalizing 
the  adoption  of  minor  children.  By  §  3  of  the  Act,  it  is  declared 
that,  when  the  provisions  of  the  statute  are  complied  with,  "such 
child  shall  be,  to  all  intents  and  purposes,  the  child  and  heir- 
at-law  of  the  person  so  adopting  him  or  her,  entitled  to  all  the 
rights   and    privileges,   and    subject   to   all    the   obligations    of  a 


86  REAL    PROPERTY.  [Chap.  5 

by  the  death  of  the  ancestor,  for  nemo  est  hceres  viventis. 
As  to  heirs  presumptive  and  heirs  apparent,  see  2  Bl.  Com. 
(208). 

§  71.  The  Virginia  Statute  of  Descents. — For  the  com- 
mon law  canons  of  descent,  which  were  in  force  in  England 
until  January  1,  1834,  see  2  Bl.  Com.  chap.  14.  For  the  new 
rules  of  descent  introduced  by  3  and  4  Wm.  4,  c.  106,  see 
Wms.  E.  P.  (100).  The  law  of  descent  in  the  United  States 
differs  largely  from  both  the  common  law  canons  and  the 
statutory  rules.  We  shall  discuss  the  subject  by  an  examin- 
ation of  the  Virginia  statute  of  descents,  explaining  as  we  pro- 
ceed in  what  it  differs  from  the  law  of  England.  The  Vir- 
ginia Statute  was  enacted  in  October,  1785,  to  take  effect  Jan- 
uary 1,  1787.  It  was  the  work  of  Jefferson,  assisted  by  Pen- 
dleton and  Wythe,  and  is  regarded  as  a  master-piece  of  legis- 
lation. It  has  been  substantially  followed  in  many  of  the 
states. 

The  first  section  of  the  statute  is  as  follows  (Code  1887, 
§  2548)  :  "When  any  person  having  title  to  any  real  estate 
of  inheritance  shall  die  intestate  as  to  such  estate,  it  shall 
descend  and  pass  in  parcenary  to  such  of  his  kindred,  male 
and  female,  as  are  not  alien  enemies,  in  the  following  course : 

First.     To  his  children  and  their  descendants. 

Second.  If  there  be  no  child,  nor  the  descendant  of  any 
child,  then  to  his  father. 

Third.  If  there  be  no  father,  then  to  his  mother,  brothers 
and  sisters,  and  their  descendants. 

Fourth.     If  there  be  no  mother,  nor  brother,  nor  sister,  nor 

child  of  such  person  begotten  in  lawful  wedlock;  but  on  the  de- 
cease of  such  person,  and  the  subsequent  decease  of  such  adopted 
child,  without  issue,  the  property  of  such  adopting  parent  still 
undisposed  of,  shall  descend  to  his  or  her  next  of  kin,  and  not 
to  the  next  of  kin  of  such  adopted  child."  For  a  discussion  of- 
the  whole  subject  of  adoption,  see  39  Am.  St.  Rep.  210-31,  mono- 
graphic note  to  Van  Matre  v.  Sankey,  148  111.  536.  For  a  criti- 
cism of  the  Virginia  statute,  see  1  Va.  Law  Reg.  p.  463,  by 
Prof.  Lile. 


§§  70-72]  DESCENTS.  87 

any  descendant  of  either,  then  one  moiety  shall  go  to  the 
paternal,  the  other  to  the  maternal  kindred  in  the  following 
course : 

Fifth.     First  to  the  grandfather. 

Sixth.  If  none,  then  to  the  grandmother,  uncles  and  aunts 
on  the  same  side,  and  their  descendants. 

Seventh.  If  none  such,  then  to  the  great-grandfathers,  or 
great-grandfather,  if  there  he  but  one. 

Eighth.  If  none,  then  to  the  great-grandmothers,  or 
great-grandmother,  if  there  be  but  one,  and  the  brothers 
and  sisters  of  the  grandfathers  and  grandmothers,  and  their 
descendants. 

Ninth.  And  so  on  in  other  cases,  without  end,  passing 
to  the  nearest  lineal  male  ancestors,  and  for  want  of  them, 
to  the  nearest  lineal  female  ancestors,  in  the  same  degree, 
and  the  descendants  of  such  male  and  female  ancestors. 

Tenth.  If  -there  be  no  father,  mother,  brother,  or  sister, 
nor  any  descendant  of  either,  nor  any  paternal  kindred, 
the  whole  shall  go  to  the  maternal  kindred;  and  if  there  be 
no  maternal  kindred,  the  whole  shall  go  to  the  paternal 
kindred.  If  there  be  neither  maternal  nor  paternal  kin- 
dred, the  whole  shall  go  to  the  husband  or  wife  of  the  in- 
testate; or  if  the  husband  or  wife  be  dead,  to  his  or  her 
kindred,  in  the  like  course  as  if  such  husband  or  wife  had 
survived  the  intestate,  and  died  entitled  to  the  estate." 

§  72.  Construction  of  the  Statute. — It  will  be  seen  that 
the  statute,  at  the  very  outset,  changes  the  common  law 
in  several  essential  particulars.  (1)  It  makes  the  stock  of 
descent  the  person  having  title,  whereas  by  the  common 
law  the  stock  is  the  person  last  seised,  and  by  the  English 
statute  of  1833,  the  stock  is  the  last  purchaser.  (2)  It 
abolishes  primogeniture,  and  the  preference  of  males  over 
females;  for  the  estate  "shall  descend  and  pass  in  parcenary 
to  his  kindred,  male  and  female."  (3)  The  language  of 
the  statute,  as  above  given,  excludes  alien  enemies  only. 
And  by  Code  of  Virginia,  §  43,  it  is  declared  that,  "any 


88  REAL    PROPERTY.  [Chap.  5 

alien,  not  an  enemy,  may  acquire  by  purchase  or  descent  and 
hold  real  estate  in  this  State ;  and  the  same  shall  be  transmit- 
ted in  the  same  manner  as  real  estate  held  by  citizens."  And 
see  the  "Naturalization  Act  of  1870"  in  England,  43  Vict., 
chap.  14,  §  2,  to  the  same  effect.    Wms.  R.  P.  (136). 

The  rules  of  descent  by  the  Virginia  statute,  as  set  out 
above,  are  so  plain  that  they  need  scarcely  any  explana- 
tion. Attention  should  be  directed,  however,  to  the  fol- 
lowing points : 

(1)  The  common  law  maxim,  seisina  facit  stipitem  (as 
to  which  see  2  Bl.  Com.  209  n.  8),  being  abolished,  all  real 
estate  of  an  intestate  to  which  he  has  any  title,  whether 
present  or  reversionary,  whether  in  possession  or  in  action, 
will  descend  to  the  same  heirs,  and  that  without  any  regard 
to  the  seisin.  Carney  v.  Kain  (W.  Va.),  23  S.  E.,  650.  (2) 
The  Virginia  statute,  in  default  of  children  or  the  descend- 
ants of  children  of  the  intestate,  makes  his  father  his  heir. 
This  is  also  done  by  the  English  statute  of  1833.  Wms.  E. 
P.  (105).  But  at  common  law  lands  would  escheat  rather 
than  go  to  any  lineal  ancestor.  2  Bl.  Com.  (212).  (3)  It 
should  be  observed  that  the  principle  on  which  the  statute  is 
framed  is  stated  under  "Ninth"  above.  In  default  of 
children,  tlie  estate  passes  to  the  nearest  lineal  male  ances- 
tor or  ancestors,  and  for  want  of  them  to  the  nearest  lineal 
female  ancestor  or  ancestors,  in  the  same  degree,  and  the 
descendants  of  such  male  and  female  ancestors.  Thus  while 
lineal  male  ancestors  constitute  a  class  by  themselves,  the 
lineal  female  ancestors  are  called  to  the  inheritance  together 
with  their  children.  So  the  mother  of  the  intestate  and  her 
children  (his  brothers  and  sisters)  form  a  class;  also  the 
grandmother  of  the  intestate  and  her  children  (his  uncles 
and  aunts)  and  so  on.  And  the  existence  of  a  single  member 
of  any  class,  or  any  descendant  of  a  member,  will  cause 
the  entire  estate  to  vest  in  such  member  or  descendant,  to 
the  exclusion  of  a  more  remote  class,  however  numerous. 
(4)    The  division  into  moieties  between   the   paternal   and 


§§72,73]  DESCENTS.  89 

maternal  lines  takes  place  when  there  is  no  father  or  mother, 
no  brother  or  sister,  nor  the  descendants  of  any  of  them.  But 
after  the  division  is  once  made  at  this  point,  each  moiety 
goes  to  the  proper  kindred  as  a  elms,  on  the  paternal  and 
maternal  side  respectively,  and  there  is  no  further  division 
into  moieties  as  between  the  brandies  of  paternal  and  ma- 
ternal kindred.  And  each  moiety  keeps  on  its  own  side, 
regardless  of  the  other,  so  long  as  there  are  any  kindred, 
however  remote,  on  that  side.  But  if  there  be  no  kindred 
on  its  side,  either  moiety  may  then  go  to  the  other.  At  com- 
mon law  there  was  nothing  analogous  to  this  division  into 
moieties.  For  if  the  inheritance  was  novum  feudum  held  ut 
antiquum,  the  whole  went  to  the  paternal  kindred,  if  any; 
if  none,  then  the  whole  to  the  maternal  kindred.  If  it  was 
really  feudum  antiquum,  the  inheritance  went  to  the  col- 
laterals on  the  side  from  which  it  descended,  and  would 
escheat  rather  than  go  to  the  other  side,  because  collaterals 
on  that  side  were  not  of  the  blood  of  the  first  purchaser.  2 
Bl.  Com.  (222).  And  by  the  English  statute  of  1833,  there 
is  no  division  into  moieties,  but  the  paternal  kindred  are  pre- 
ferred to  the  maternal.  Wms.  B.  P.  (107).  (5)  The  Vir- 
ginia statute,  in  default  of  all  other  heirs,  allows  husband  or 
wife  to  be  heir  to  the  other.  This  is  contrary  to  the  common 
law,  which  gave  the  wife  dower  and  the  husband  curtesy, 
but  preferred  that  the  lands  should  escheat  rather  than 
allow  husband  or  wife,  as  such,  to  inherit  from  the  other. 

§  73.  Per  Stirpes  and  Per  Capita. — The  right  of  repre- 
sentation, or  taking  per  stirpes,  prevails  universally  in  the 
English  law  of  descents,  without  reference  to  the  nearness  or 
remoteness,  and  alike  as  to  lineal  and  collateral  inheritance. 
2  Bl.  Com.  (217).  The  principle  was  unchanged  by  the 
English  statute  of  1833.  The  Virginia  statute  retains  the 
right  of  representation  to  a  certain  extent,  though  it  sub- 
stitutes per  capita  for  per  stirpes,  when  justice  seems  to 
demand  it.  The  statute  is  as  follows:  "When  the  children 
of  the  intestate,  or  his  mother,  brothers  and  sisters,  or  his 


90  REAL    PROPERTY.  [Chap.  5 

grandmother,  uncles  and  aunts,  or  any  of  his  female  lineal 
ancestors  living,  with  the  children  of  his  deceased  lineal 
ancestors  male  and  female,  in  the  same  degree,  come  into 
the  partition,  they  shall  take  per  capita,  or  hy  persons; 
and  where  a  part  of  them  heing  dead  and  a  part  living,  the 
issue  of  those  dead  have  a  right  to  partition,  such  issue 
shall  take  per  stirpes,  or  by  stocks,  that  is  to  say,  the  shares 
of  their  deceased  parents;  but  whenever  those  entitled  to 
partition  cure  all  in  the  same  degree  of  kindred  to  Hie  intes- 
tate, they  shall  take  per  capita,  or  by  persons."  Code, 
§  2550. 

The  statute  as  drawn  by  Jefferson  did  not  contain  the 
last  word  in  italics.  These  were  added  in  the  revision  of 
1849  (taking  effect  July  1,  1850),  as  legislative  sanction  of 
the  decision  in  Davis  v.  Roive,  6  Eand.  355,  as  to  which 
see  hereafter.  "I  understand  the  rule  thus  broadly,"  said 
Carr,  J.,  in  Davis  v.  Rome,  construing  the  statute  in  its 
original  form:  "Wherever  several  persons  succeed  to  the 
inheritance  at  the  same  time,  if  they  are  all  related  to  the 
intestate,  in  equal  degree,  they  shall  take  by  persons ;  but 
if  part  of  them  be  more  remote,  those  shall  take  the  shares 
of  their  deceased  parents."  See  also  Browne  v.  Turbervillc, 
2  Call  390 ;  Templeton  v.  Steptoe,  1  Munf.  339. 

It  will  be  seen  that  the  statute  names  the  several  classes, 
and  provides  that  the  members  of  each  class,  if  all  are  liv- 
ing, shall  take  per  capita;  and  also  that  if  some  are  living 
and  some  are  dead,  the  issue  of  those  dead  shall  take  per 
stirpes.  But  before  1850  (when  the  words  in  italics  above 
were  added),  it  did  not  in  express  terms  provide  for  a  case 
where  all  the  members  of  a  class  were  dead,  and  partition 
was  to  be  made  between  their  descendants.  Thus,  in  Davis 
v.  Rowc,  supra,  Anthony  Gardner  died  intestate  in  1819, 
leaving  no  children,  nor  the  descendants  of  any.  He  left 
no  father,  nor  mother,  nor  brothers,  nor  sisters,  but  he 
had  had  a  brother  and  a  sister  who  died  before  him;  and 
at  A.  G-.'s  death  there  were  living  a  niece,  Mrs.  Davis,  the 


§  73]  DESCENTS.  91 

only  child  of  the  brother,  and  two  nephews,  James  and 
Francis  Bowe,  children  of  the  sister.  The  sister  had  also 
had  two  daughters  who  married,  and  died  before  A.  G., 
leaving  issue  (his  grand-nephews  and  grand-nieces),  the  one, 
two  children  and  the  other  six  children.  It  was  claimed 
by  Mrs.  Davis  that  the  statute  did  not  apply  to  the  case, 
and  that  she  was  entitled,  as  representing  her  father,  to 
one-half  of  the  estate.  But  the  court  held  that  the  case 
was  within  the  spirit  of  the  statute,  and  that  as  Mrs.  Davis 
was  in  equal  degree  with  the  Eowes,  the  estate  should  be 
divided  into  five  parts,  counting  Mrs.  Davis,  the  two  Eowes, 
and  the  sister's  two  daughters  who  died  leaving  issue;  and 
that  Mrs.  Davis  and  the  two  Eowes  should  each  have  one- 
fifth,  and  that  the  other  two-fifths  should  go  to  the  issue  of 
the  deceased  daughters  of  the  sister  per  stirpes,  giving  to  the 
two  children  of  the  one  one-tenth  each,  and  to  the  six  children 
of  the  other  one-thirtieth  each. 

As  the  law  is  now  settled  by  Davis  v.  Rowe,  and  by  the 
statute  of  1850,  it  is  easy  to  determine  whether  those  called 
to  the  inheritance  take  per  stirpes  or  per  capita.  Thus  if 
the  intestate  leaves  children  only,  or  grandchildren  only,  or 
great  grandchildren  only,  they  take  per  capita,  because  in 
equal  degree.  So  if  there  are  nephews  only,  or  great-nephews 
only.  But  if  there  should  be  children  and  grandchildren 
called  together  to  the  inheritance,  the  children  would  take 
per  capita,  the  grandchildren  per  stirpes.  So  if  there  be 
no  children,  but  grandchildren  are  called  to  the  inheritance 
together  with  great-grandchildren,  the  former  would  take 
per  capita,  the  latter,  per  stirpes.  The  per  capita  line,  or 
line  of  equal  division,  runs  with  the  heirs  who  are  nearest  in 
degree  to  the  ancestor.  The  number  of  shares  in  that  line  is 
found  by  counting  those  who  are  living,  and  those  who  are 
dead  leaving  issue.  Below  the  per  capita  line,  the  division 
is  always  per  stirpes.  Thus  in  Davis  v.  Rowe,  the  per  capita 
line  ran  with  the  nephews  and  nieces,  as  they '  were  nearest 
of  kin  to  the  intestate.     But  the  great  nephews  and  nieces 


92  REAL    PROPERTY.  [Chap.  5 

took  per  stirpes.  And  in  Ball  v.  Ball,  27  Gkrat.  325,  where 
the  intestate  left  as  her  heirs  five  children  of  her  deceased 
son  S.,  six  children  of  her  deceased  son  W.,  and  a  grandchild 
of  W.,  the  only  child  of  a  deceased  daughter  of  W.,  it  was 
held,  that  the  estate  should  be  divided  into  twelve  equal  parts, 
of  which  the  five  children  of  her  son  S.,  the  six  children  of 
her  son  W.,  and  the  grandchild  of  W.,  representing  her  de- 
ceased mother,  should  each  have  one  part.1 

§  74.    Descent  from  an  Infant. — The  original  statute  of 
descents,  as  framed  by  Jefferson,  did  not  contain  any  special 

1  Per  Stirpes  or  per  Capita  Under  Wills. — In  Walker  v.  Web- 
ster (Va.),  28  S.  E.  570,  the  residuary  clause  of  a  will  was  as 
follows:  "All  the  rest  and  residue  of  my  estate,  real,  personal, 
and  mixed,  I  desire  shall  go  to,  and  be  divided  in  equal  parts 
among,  those  who  would  be  my  heirs-at-law  under  the  statutes  of 
descents  and  distributions  in  Virginia,  in  case  I  had  died  intestate." 
Held,  that  the  heirs-at-law  took,  under  this  clause,  per  capita  and 
not  per  stirpes.  Judge  Riely,  in  delivering  the  opinion  of  the 
court,  said:  "The  reference  to  the  statute  of  descents  and  dis- 
tributions was  simply  to  designate  the  persons  who  were  to  take 
the  residuum  of  the  estate.  The  testator  did  not  thereby  intend 
to  prescribe  also  the  manner  of  the  division.  He  does  not  say 
that  the  persons  designated  were  to  take  as  if  he  had  died  in- 
testate, which  would  give  some  color  to  the  contention  that  they 
take  in  the  manner  prescribed  by  the  statute,  but  merely  that 
those  persons  should  take  who  would  be  his  heirs  in  case  he  had 
died  intestate.  The  reference  to  the  statute  ascertains  who  shall 
take,  but  not  how  they  shall  take.  How  they  are  to  take  is  other- 
wise prescribed.  They  are  to  take  'in  equal  parts.'  If  the  testator 
had  meant  that  both  the  persons  who  were  to  take  and  the  man- 
ner of  the  division  should  be  in  accordance  with  the  statute,  as 
if  he  had  died  intestate,  then  this  clause  in  his  will  v/as  entirely 
useless;  for  in  that  case  the  same  persons  would  take,  and  in 
the  same  manner,  as  if  he  had  died  intestate.  It  is  to  be  pre- 
sumed that  he  had  some  object  in  inserting  this  clause  in  his 
will.  That  object  is,  to  my  mind,  unmistakable.  He  meant  that 
these  persons  who  would  be  his  heirs-at-law,  under  the  statute, 
in  case  of  intestacy,  should  have  the  residuum  of  his  estate;  yet 
he  did  not  intend  that  they  should  take  it  in  the  manner  pre- 
scribed by  the  statute,  but  equally.     ...     If  they  were  held 


§§73,74]  DESCENTS.  93 

provisions  as  to  the  estates  of  infants.  Statutes,  however, 
upon  this  subject,  were  passed  in  1792  and  in  1819,  which 
gave  rise  to  many  doubts.  In  the  revision  of  1849,  the  law 
was  enacted  as  it  now  appears  in  the  Code  of  1887,  chap. 
113,  §  2556:  "If  an  infant  die  without  issue,  having  title 
to  real  estate  derived  by  gift,  devise  or  descent,  from  one 

to  take  per  stirpes  instead  of  per  capita,  then  they  would  take  in 
unequal  instead  of  equal  parts.  Helen  Kemple  and  Mary  E. 
Webster,  sisters  of  the  testator,  would  each  receive,  under  that 
construction,  one-third  of  the  residuum,  while  Elenia  P.  Walker, 
a  daughter  of  Eliza  Brannon,  a  deceased  sister  of  the  testator, 
would  receive  one-sixth,  and  Lena  Leadbetter,  Mariana  Newman 
and  Bessie  Newman,  children  of  Eliza  Newman,  deceased,  another 
daughter  of  Eliza  Brannon,  would  divide  the  remaining  one- 
sixth  between  them,  making  the  share  of  each  of  them  one- 
eighteenth,  in  direct  violation  of  the  principle  of  equality  of 
division  expressly  prescribed  by  the  testator  in  the  clause  of  the 
will  making  the  gift."  In  Hoxton  v.  Griffith,  18  Grat.  574,  577, 
the  general  principle  is  thus  laid  down:  "When  a  bequest  is 
made  to  several  persons,  in  general  terms  indicating  that  they 
are  to  take  equally  as  tenants  in  common;  each  individual  will, 
of  course,  take  the  same  share;  in  other  words,  the  legatees  will 
take  per  capita.  The  same  rule  applies  when  a  bequest  is  to  one 
who  is  living,  and  to  the  children  of  another  who  is  dead,  what- 
ever may  be  the  relations  of  the  parties  to  each  other,  or  how- 
ever the  statute  of  distributions  might  operate  upon  those  rela- 
tions in  case  of  intestacy.  Thus  when  property  is  given  'to  my 
brother  A  and  to  the  children  of  my  Brother  B,  A  takes  a  share 
only  equal  to  that  of  each  of  the  children  of  B.  So  that  when  the 
gift  is  'to  A's  and  B's  children,'  or  'to  the  children  of  A  and  the 
children  cf  B,'  the  children  take,  as  individuals,  per  capita.  The 
substance  of  this  rule  of  construction  is  that,  in  the  absence  of  ex- 
planation, the  children,  in  such  a  case,  are  presumed  to  be  re- 
ferred to  as  individuals  and  not  as  a  class."  It  is  added  that  "this 
rule  is  not  inflexible,  and  will  yield  to  the  cardinal  rule  of  con- 
struction, which  requires  that  effect  shall  be  given  to  the  inten- 
tion of  the  testator,  to  be  collected  from  the  whole  will";  and  in 
the  case  at  bar  the  general  rule  was  held  to  yield  to  the  manifest 
intention  of  the  testatrix.  For  cases  in  which  the  general  rule 
was  applied,  see  Croxo  v.  Crow,  1  Leigh  (Va.),  74;  McZlastcr  v. 
McMaster,  10  Grat.  (Va.),  275;  Senger  v.  Senger,  81  Va.,  687. 


94  REAL    PROPERTY.  [Chap.  5 

of  his  parents,  the  whole  of  it  shall  descend  and  pass  to 
his  kindred  on  the  side  of  that  parent  from  whom  it  was  so 
derived,  if  any  such  kindred  be  living  at  the  death  of  the 
infant.  If  there  be  none  such,  then  it  shall  descend  and 
pass  to  his  kindred  on  the  side  of  the  other  parent." 

It  is  manifest  that  the  old  feudal  idea  of  the  blood  of  the 
first  purchaser  is  here  recognized.  But  the  principle  of 
the  law  is  a  natural  one.  It  is  to  prevent  the  transfer  of 
estates  from  one  family  to  another  under  the  following  cir- 
cumstances :  B  marries  F,  who  has  title  to  real  estate.  A 
child  is  born  to  F  who  suivives  his  mother  only  a  few  hours, 
she  dying  in  child-birth.  It  would  be  unjust  that  B  should 
inherit  F's  estate  from  the  child,  and  transmit  it  to  his 
heirs,  perhaps  his  children  by  a  second  wife.  It  is  enough, 
in  such  a  case,  that  B  should  have  curtesy.  See  Vaughan 
v.  Jones,  23  Grat.  444. 

It  should  be  borne  in  mind  that  the  real  estate  of  an  infant 
will  descend  in  the  same  manner  as  that  of  an  adult:  (1) 
Unless  it  is  derived  by  gift,  devise  or  descent  from  one  of 
his  parents;  i.  e.,  unless  it  is  derived  from  his  father  or 
mother,  not  grandfather  or  grandmother,  or  any  other  rela- 
tion than  parents.  (2)  Unless  the  estate  is  derived  directly 
from  one  of  his  parents;  e.  g.,  if  the  estate  descends  from  a 
parent  to  a  brother  of  the  infant,  and  from  the  brother  to 
the  infant,  this  estate  is  not  derived  from  the  parent  in  the 
meaning  of  the  statute. 

A  good  example  of  the  descent  of  an  infant's  estate  is 
found  in  Davis  v.  Christian,  15  Grat.  11,  32.  There  J.  B. 
C.  devised  two-ninths  of  his  realty  to  each  of  his  three 
daughters,  Hannah,  Jane,  and  Sarah.  All  three  died  before 
their  mother,  Abby  C. ;  Hannah,  in  1839,  an  infant;  Jane, 
in  1840,  an  adult;  and  Sarah,  in  1841.,  an  infant.  On  the 
death  of  Hannah,  her  two-ninths,  derived  directly  by  devise 
from  her  father,  went  to  her  sisters  equally,  to  the  exclusion 
of  her  mother.  When  Jane  died  next,  an  adult,  her  estate 
passed  to  her  mother  and  her  sister  Sarah  in  equal  shares. 


§§74,75]  DESCENTS.  95 

In  the  death  of  Sarah,  an  infant,  her  estate  descended  as 
follows:  the  two-ninths  received  directly  from  her  father 
could  not  go  to  Abby  C,  her  mother,  but  went  to  an  aunt  on 
the  side  of  the  father.  But  the  shares  inherited  from  her 
sister,  viz.,  one-ninth  from  Hannah,  and  three-eighteenths 
from  Jane,  went  to  her  mother,  as  these  were  not  derived 
directly  from  the  father.  So  that  Abby  C.  inherited  from  her 
daughters  four-ninths  in  all.  The  above  example  shows  the 
importance  in  tracing  descent  of  paying  strict  attention: 
(1)  to  the  order  in  which  deaths  occur;  (2)  to  the  age  of 
each  decedent,  whether  infant  or  adult;  and  (3)  the  source 
from  which  interests  in  land  are  derived,  when  an  infant  dies 
without  issue,  having  title  to  real  estate. 

In  Vaughan  v.  Jones,  23  Grat.  444,  the  real  estate  of  F, 
a  female  infant,  was  sold  by  decree  of  court  under  Code, 
Va.,  §  2616,  and  the  proceeds  reinvested  under  §  2622.  F 
married  B,  and  died  under  twenty-one,  leaving  a  child  who 
survived  her  but  a  few  hours,  and  her  husband  who  sur- 
vived the  child.  Held,  (1)  that  though  the  real  estate  of 
F.  had  been  sold,  yet  by  Code  of  Virginia,  §  2626,  the  pro- 
ceeds descended  as  realty,  and  went  in  the  first  place  to  the 
child  of  F,  subject  to  a  life  estate  in  B;  (2)  that  on  the 
death  of  the  child,  the  proceeds,  as  realty  derived  from  the 
mother,  passed  to  the  heirs  of  the  child  on  the  part  of  the 
mother,  and  not  to  the  father. 

§  75.  Collaterals  of  the  Half-Blood. — For  full  discussion, 
see  61  Am.  Dec.  655-'67;  also  12  Am.  St.  Eep.  110,  111. 
At  common  law,  collaterals  of  the  half-blood  were  totally 
excluded  from  the  inheritance.  2  Bl.  Com.  (224).  But  it 
should  be  remembered  that  if  the  descent  is  lineal,  the  doctrine 
of  the  half-blood  has  no  application ;  for  the  heirs,  though  of 
half-blood  to  each  other,  are  of  the  whole  blood  to  the  an- 
cestor. Thus,  if  the  descent  be  from  a  father,  all  of  his 
children,  though  by  different  wives,  are  of  the  whole  blood 
to  the  father,  and,  if  daughters,  would  be  entitled  in  England 
as  co-parceners.     But  at  common  law  if  a  man  should  die 


96  REAL    PROPERTY.  [Chap.  5 

seised  of  land,  and  have  no  kindred  except  brothers  of  the 
half-blood,  the  land  would  escheat  to  the  lord. 

The  explanation  of  the  maxim,  possessio  fratris  facit 
sororem  esse  hceredem  (as  to  which  see  2  Bl.  Com.  (228)  n. 
26),  depends  on  the  foregoing  principles.  Suppose  P  mar- 
ries two  wives,  M  and  1ST,  and  has  by  M  a  son,  A,  and  a 
daughter,  B,  and  by  X,  the  second  wife,  a  son,  C.  Now, 
on  the  death  of  P,  if  A  enters  and  is  seised,  A  will  be  the 
stock  of  descent,  and  on  A's  death,  the  land  will  descend 
to  B,  his  sister  of  the  whole  blood,  and  C,  the  brother  of 
the  half-blood,  will  be  excluded.  Here  the  possession  (or 
seisin)  of  A  (the  brother)  makes  his  sister  (B)  his  heir,  be- 
cause when  A  is  the  stock  the  descent  is  collateral,  and 
only  the  whole  blood  can  inherit.  But  suppose  A  had  died 
without  entry.  Then  the  descent  would  be  lineal,  i.  e., 
from  P,  the  person  last  seised,  and  C  would  take  over  B 
by  preference  of  males,  both  B  and  C  being  equally  of  the 
whole  blood  to  P,  their  father. 

The  Virginia  law  as  to  the  half-blood  is  as  follows :  "Col- 
laterals of  the  half-blood  shall  inherit  only  half  so  much  as 
those  of  the  whole  blood;  but  if  all  the  collaterals  be  of  the 
half-blood,  the  ascending  kindred,  if  any,  shall  have  double 
portions."  Code  §  2549.  It  will  be  seen  that  in  Virginia 
collaterals  of  the  half-blood  are  called  to  the  inheritance 
in  the  same  class  with  the  whole  blood,  taking  half  portions. 
But  in  England,  by  the  statute  of  1833,  the  half-blood  are 
postponed  to  the  whole  blood,  i.  e.,  if  there  is  a  brother  of 
the  whole  blood,  half-brothers  would  not  inherit  at  all.  Wms. 
E.  P.  (109). 

Under  the  Virginia  statute,  an  easy  rule  by  which  to  de- 
termine the  proportions  is  to  double  the  number  of  the  col- 
laterals of  the  whole  blood,  and  then  add  those  of  the  half- 
blood.  This  will  give  the  parts  into  which  the  estate  is 
to  be  divided,  and  the  whole  blood  take  each  two  parts,  the 
half-blood  each  one  part.  Thus  if  the  descent  is  from  A, 
and  his  heirs  are  two  brothers  of  the  whole  blocd,  and  a 


§§  75,  76]  DESCENTS.  97 

sister  of  the  half  blood,  the  inheritance  will  be  divided  into 
five  parts,  of  which  the  brothers  will,  each  receive  two  parts, 
and  the  sister  one  part.  And  in  this  case,  if  we  sup- 
pose the  mother  of  A  living,  the  inheritance  would  be 
divided  into  seven  parts,  of  which  she  would  receive  two 
parts,  and  the  other  five  parts  would  be  divided  as  before. 
If,  however,  the  mother  of  the  half-blood,  the  stepmother 
of  A,  be  living,  she  would  inherit  nothing  from  A,  because 
not  of  his  blood.  And  if  the  mother  of  A  be  living,  and 
also  children  of  hers  by  a  second  husband,  but  A  is  the 
only  child  by  the  first  husband,  then  on  the  death  of  A,  there 
being  no  collaterals  of  the  whole  blood,  the  mother  would 
take  twice  as  much  as  any  one  of  her  children,  for  this  is 
the  case  in  which  the  statute  declares  that  "the  ascending 
kindred  shall  have  double  portions.  Moore  v.  Connor  (Va.), 
20,  S.  E.  936. 

§  76.  Bastards. — At  common  law  a  bastard  cannot  inherit 
even  from  his  mother.  2  Bl.  Com.  (247).  He  cannot 
transmit  inheritance  even  ex  parte  materna.  And  as  a  bas- 
tard can  have  no  heirs  but  those  of  his  own  body,  neither 
his  mother,  nor  brothers,  etc.,  can  inherit  from  him.  Wms. 
R.  P.  (126). 

By  statute  in  Virginia,  "Bastards  shall  be  capable  of  in- 
heriting and  transmitting  inheritance  on  the  part  of  their 
mother  as  if  lawfully  begotten."  Code  §  2552.  And  this 
is  the  rule  generally  in  the  United  States.  Wms.  R.  P. 
(126),  n.  2.  But  as  to  the  father  and  the  paternal  kindred, 
a  bastard's  disability  to  inherit  and  transmit  inheritance 
remains  the  same  as  at  common  law. 

In  Garland  v.  Harrison,  8  Leigh  368,  a  question  arose 
as  to  what  is  meant  by  "transmitting  inheritance  on  the 
part  of  the  mother."  Does  it  mean  only  that  from  her 
through  her  bastard  child,  an  estate  may  pass  to  his  de- 
scendants? Or  does  it  mean  that  all  the  rules  of  descent 
apply  to  bastards,  in  respect  to  kindred,  the  mother  included, 
ex  parte   materna?     The    latter   was   considered   to   be   the 


98  REAL    PROPERTY.  [Chap.  5 

construction,  though  the  Supreme  Court  of  the  United  States 
had  decided  otherwise  in  Stevenson  v.  Sullivant,  5  Wheat. 
207.  It  was  held,  therefore,  in  Garland  v.  Harrison,  where 
a  bastard  died  intestate,  without  issue,  leaving  a  mother 
and  two  bastard  uterine  brothers,  that  the  mother  and  half- 
brother  should  inherit  together  from  him,  the  mother  taking 
a  whole  share,  and  the  half-brothers  half  shares.  A  bastard 
cannot  have  whole  brothers,  but  every  uterine  brother,  whether 
legitimate  or  spurious,  is  his  half-brother.  See  also  Hepburn 
v.  Bundas,  13  Grat.  219 ;  Bennett  v.  Toler,  15  Id.  588.1 

§  77.  Heirs  not  in  esse  at  the  Ancestor's  Death. — The 
common  law  rule  upon  this  subject  was  extremely  liberal. 
It  was  not  even  necessary  that  the  heir  should  be  en  ventre 
sa  mere  at  the  ancestor's  death;  he  was  still  allowed  to  take, 
though  born  many  years  after.  And  in  this  way  it  might 
happen  that  an  estate  would  vest  successively  in  several 
heirs  presumptive  before  finally  descending  to  him  whose 
title  was  indefeasible.  Thus,  let  P  and  M  be  husband  and 
wife,  and  suppose  the  parents  of  P  are  living.  P  has  a 
son,  A,  who  dies  seised  of  land.  This  land  might  descend 
first  to  the  aunt  of  A,  the  sister  of  P.     But  as  the  parents 

1 1.  Who  are  Bastards  in  Virginia. — By  Code  of  Virginia, 
§  2553:  "If  a  man  having  had  a  child  or  children  by  a  woman, 
shall  afterwards  intermarry  with  her,  such  child,  or  children,  or 
their  descendants,  if  recognized  by  him  before  or  after  the  mar- 
riage, shall  be  deemed  legitimate."  And  by  §  2554:  "The  issue  of 
marriages  deemed  null  in  law,  or  dissolved  by  a  court,  shall, 
nevertheless,  be  deemed  legitimate."  On  the  construction  of 
§  2554,  see  Stones  v.  Keeling,  5  Call  (Va.)  148;  Greenhow  v. 
James,  80  Va.  636;  Heckert  v.  Hile,  90  Va.  390.  For  the  construc- 
tion of  Code  of  Virginia,  §  2227,  legitimating  the  children  of  col- 
ored persons,  when  prior  to  the  27th  day  of  February,  1866,  they 
"agreed  to  occupy  the  relation  to  each  other  of  husband  and  wife, 
and  were  cohabiting  together  as  such  at  that  date,  whether  the 
rites  of  marriage  had  been  celebrated  between  them  or  not,"  see 
Fitchett  v.  Smith,  78  Va.  524;  Smith  v.  Perry,  80  Va.  563.  And 
see  on  the  whole  subject  of  descents,  12  Am.  St.  Rep.,  mono- 
graphic note,  pp.  80-111. 


§§  76-78]  DESCENTS.  99 

of  P  are  living,  a  son  might  be  born  to  them,  and  he  would 
take  the  land  as  uncle  of  A  in  preference  to  the  aunt.  If, 
now,  a  daughter  is  born  to  P  and  M,  this  sister  of  A  will 
take  the  land  from  the  uncle,  as  nearer  in  degree  to  her 
brother.  And,  finally,  a  son  born  to  P  and  M  will  take  the 
land  from  the  sister  by  preference  of  males  over  females. 
See  2  Bl.  Com.  (208),  n.  C. 

For  a  long  time,  the  law  of  Virginia  as  to  heirs  not  in 
being  at  the  ancestor's  death  was  very  strict.  By  the  act 
of  1875,  it  was  declared,  that,  "No  right  in  the  inheritance 
shall  acrue  to  any  persons  whatever,  other  than  children 
of  the  intestate,  unless  they  be  in  being,  and  capable  in  law 
to  take  as  heirs  at  the  time  of  the  ancestor's  death."  1  Rev. 
Code,  p.  357.  By  this  statute  even  infants  en  ventre  sa 
mere,  unless  children  could  not  take.  And  the  word  chil- 
dren did  not  extend  to  grand-children.  Blunt  v.  Gee,  5 
Call,  512.  But  by  a  statute  passed  February  21,  1840,  it 
is  provided  that,  "Any  person  en  ventre  sa  mere,  who  may 
be  born  in  ten  months  after  the  death  of  the  intestate,  shall 
be  capable  of  taking  by  inheritance,  in  the  same  manner  as 
if  he  were  in  being  at  the  time  of  such  death."  Code  of 
Virginia  §  2555.  By  this  statute  not  only  children,  but  any 
person  en  ventre  sa  mere  at  the  death  of  the  intestate  can 
inherit. 

A  case,  however,  might  occur  in  Virginia,  even  under  the 
present  law,  in  which  those  who  would  have  been  heirs  if 
en  ventre  sa  mere  at  the  death  of  the  intestate,  would  be 
excluded  from  the  inheritance.  Thus,  suppose  A  should 
die  intestate,  leaving  his  mother  and  brothers  his  heirs. 
Now;  if  his  mother  should  marry  again  after  the  death  of 
A,  and  have  a  child,  such  child  would  be  of  the  half  blood 
to  A,  but  he  could  not  claim  any  part  of  A's  estate,  because 
not  en  ventre  sa  mere  at  his  death. 

§  78.  Descent  in  the  United  States. — The  statutes  of  de- 
scents of  the  several  States  have  many  minor  differences, 
but  they  all  depart  widely  from  the  canons  of  the  common 


100  REAL    PROPERTY.  [Chap.  5 

law.  In  all  of  them,  the  descent  is  in  the  first  place  to  the 
children,  though  in  some  the  husband  and  wjfe  inherit 
with  the  children.  If  no  children,  the  rules  are  various. 
In  some  of  the  States  the  Virginia  rule  is  followed,  and  the 
father  takes  first,  and,  if  none,  mother,  brothers  and  sisters 
take  together.  But  in  Alabama  the  descent  is,  if  no  children, 
first  to  brothers  and  sisters,  then  to  father,  then  to  mother; 
in  Arkansas,  first  to  the  father,  then  to  the  mother,  then  to 
the  brothers  and  sisters;  in  Texas,  to  father  and  mother, 
and  then  to  brothers  and  sisters;  in  Missouri,  to  father, 
mother,  brothers,  and  sisters,  in  equal  shares.  3  Wash. 
E.  P.  (412). 

In  some  of  the  States,  inquiry  is  made  from  whom  the 
estate  was  derived;  and  if  from  either  parent,  it  goes  first  to 
the  kindred  on  that  side,  as  in  Virginia  when  the  descent  is 
from  an  infant.  The  rules  as  to  per  stirpes  and  per  capita 
are  various.  As  to  the  half  blood,  in  some  of  the  States 
no  distinction  is  made  between  them  and  the  whole  blood; 
in  some  the  half  blood  take  half  portions,  as  in  Virginia; 
in  some  they  are  postponed  to  the  whole  blood,  as  is  now  the 
case  in  England;  but  in  none  are  they  totally  excluded  as  at 
common  law. 

§  79.  Statute  of  Distribution. — For  the  English  statute, 
see  2  Bl.  Com.  (575).  The  Virginia  statute  is  as  follows: 
"When  any  person  shall  die  intestate  as  to  his  personal  estate, 
or  any  part  thereof,  the  surplus,  subject  to  the  provisions  of 
chapter  178,  after  the  payment  of  funeral  expenses,  charges 
of  administration  and  debts,  shall  pass  and  be  distributed 
to  and  among  the  same  persons,  and  in  the  same  propor- 
tions, to  whom  and  in  which  real  estate  is  directed  to  descend, 
except  as  follows:  (1)  The  personal  estate  of  an  infant  shall 
be  distributed  as  if  he  were  an  adult.  (2)  If  the  intestate 
was  a  married  woman,  her  husband  shall  be  entitled  to  the 
whole  of  the  said  surplus  of  the  personal  estate.  (3)  If  the 
intestate  leaves  a  widow,  and  issue  by  her,  the  widow  shall 
be  entitled  to  one-third  of  the  said  surplus.     (4)  If  the  in- 


§§  78,  79]  DESCENTS.  101 

testate  leave  a  widow,  but  no  issue  by  her,  the  widow  shall  be 
entitled  absolutely  to  such  of  the  personal  property  in  the 
said  surplus  as  shall  have  been  acquired  by  the  intestate,  in 
virtue  of  his  marriage  with  her,  prior  to  April  4,  1877 
[date  of  first  Married  Woman's  Act  in  Virginia.  See  Acts 
1876-'77,  c.  349],  and  remain  in  kind  at  his  death;  she 
shall  also  be  entitled,  if  the  intestate  leave  issue  by  a  former 
marriage,  to  one-third;  if  no  such  issue,  to  one-half  the 
residue  of  such  surplus."     Code  of  Virginia,  §  2557. 

"The  foregoing  provisions  in  favor  of  the  wife  are  all 
subject  to  this  qualification,  that  if  she,  of  her  own  free 
will,  leave  her  husband  and  live  in  adultery,  she  shall  have 
no  part  of  the  personal  estate  as  to  which  he  dies  intestate, 
unless  her  husband,  after  she  so  left  him,  was  reconciled 
to  her,  and  suffered  her  to  live  with  him."  Code  of  Vir- 
ginia, §  2560.  And  by  §  2296 :  "If  a  husband  wilfully  de- 
serts or  abandons  his  wife,  and  such  desertion  or  abandon- 
ment continues  until  her  death,  he  shall  be  barred  of  all 
interest  in  her  separate  or  other  estate,  as  tenant  by  the 
curtesy,  distributee,  or  otherwise." 


CHAPTER  VI. 

Devises. 

§  80.    The  English  and  Virginia  Statutes. 

(1).  In  England.  By  statute  of  1  Victoria,  ch.  26,  §  9 
(taking  effect  January  1,  1838),  "No  will  shall  be  valid  un- 
less it  shall  be  in  writing,  and  executed  in  the  manner  here- 
after mentioned;  that  is  to  say,  it  shall  be  signed  at  the 
foot  or  end  thereof  by  the  testator,  or  some  other  person 
in  his  presence  and  by  his  direction,  and  such  signature 
shall  be  made  or  acknowleged  by  the  testator  in  the  pres- 
ence of  two  or  more  witnesses  present  at  the  same  time;  and 
such  witnesses  shall  attest,  and  shall  subscribe  the  will  in 
the  presence  of  the  testator;  but  no  form  of  attestation 
shall  be  necessary."  See  3  Jarman  on  Wills,  Appendix, 
721-805,  for  the  whole  Wills  Act  of  1837.  This  statute  is 
substantially  followed  in  many  of  our  states.  By  it  the 
same  formalities  of  execution  are  required  of  wills  of  both 
realty  and  personalty,  and  all  wills  (olograph  or  not  olo- 
graph) are  required  to  be  attested  by  at  least  two  witnesses. 
The  English  Statute  of  Frauds  required  three  witnesses; 
but  this  applied  to  wills  of  land  only.  It  has  been  fol- 
lowed as  to  the  number  of  witnesses  in  some  of  the  Ameri- 
can states  (Georgia  and  Maryland,  for  example),  which  re- 
quire three  witnesses  to  a  will. 

(2).  In  Virginia.  By  Code  of  Va.,  §  2514:  "No  will 
shall  be  valid  unless  it  be  in  writing  and  signed  by  the 
testator,  or  by  some  other  person  in  his  presence  and  by 
his  direction,  in  such  manner  as  to  make  it  manifest  that 
the  name  was  intended  as  a  signature;  and  moreover,  un- 
less it  be  wholly  written  [olograph]  by  the  testator,  the 
signature  shall  be  made  or  the  will  acknowledged  by  him  in 
the   presence   of  at  least   two   competent   ivitnesses,   present 

102 


§§80,81]  DEVISES.  103 

at  the  same  time;  and  such  witnesses  shall  subscribe  the  will 
in  the  presence  of  the  testator,  but  no  form  of  attestation 
shall  be  necessary/'1  This  statute  took  effect  July  1,  1850 
(Code  of  1849,  ch.  122,  §  4),  and  is  based  on  the  Wills  Act 
of  1  Victoria.  Rudisill  v.  Bodes,  29  Grat.  147.  But  observe 
these  differences  between  England  and  Virginia: 

(a).  As  to  signature.  The  English  statute  requires  a  will 
to  be  signed  "at  the  foot  or  end  thereof,"  but  the  Virginia 
statute  says,  "signed  in  such  manner  as  to  make  it  mani- 
fest that  the  name  was  intended  as  a  signature."  As  to 
the  effect  of  these  words,  see  hereafter. 

(b).  As  to  witnesses.  The  English  statute  requires  all 
wills  to  be  attested  by  two  witnesses;  the  Virginia  statute 
requires  no  witnesses  when  the  will  is  "wholly  written  by 
the  testator,"  i.  e.,  in  the  case  of  an  olograph  will. 

§  81.  Who  May  Make  a  Will. — All  persons  who  are  of 
sound  mind  and  over  twenty-one.  And  in  Virginia  minors 
eighteen   years    old   may   dispose    of   personal   property   by 

1  Verbal  Testamentary  Trusts. — In  Sims  v.  Sims  (Va.),  27  S. 
E.,  436,  it  is  said  by  Riely,  J.:  "Each  and  every  part  of  the  last 
will  and  testament  of  a  decedent  must  be  in  writing,  and  be  exe- 
cuted in  the  mode  prescribed  by  the  statute;  and  if  any  part  is 
in  parol,  such  part  is  void  and  inoperative  in  the  absence  of 
fraud.  In  Sprinkle  v.  Hayicorth,  26  Grat,  392,  it  was  said  by 
Judge  Moncure,  in  delivering  the  opinion  of  the  court,  that  the 
statute  of  wills  'plainly  forbids  that  a  parol  will,  whether  in  the 
form  of  a  trust  or  otherwise,  shall  be  set  up  and  established.'  An 
exception  to  the  rule  is  allowed  and  enforced  in  equity,  where  the 
devisee  or  legatee  has  procured  an  absolute  devise  or  bequest  to 
himself  by  promising  the  testator  that  he  would  hold  it  for  the 
benefit  of  another,  and  afterwards  refuses  to  perform  his  prom- 
ise, but  claims  to  hold  the  property  in  his  own  right  and  for  his 
own  benefit.  The  exception  to  the  rule  is  allowed  upon  the  ground 
of  the  trust  resulting  from  the  confidence  reposed  in  him  by  the 
testator,  and  because  not  to  do  so  would  permit  the  devisee  or 
legatee  to  profit  by  his  own  fraud,  and  in  such  a  case  to  convert 
the  statute  of  wills  into  a  law  for  the  consummation  of  fraud  in- 
stead of  being  a  law  for  its  prevention." 


104  REAL    PROPERTY.  [Chap.  6 

will.  A  married  woman  can  make  a  will  of  her  separate 
estate,  or  in  the  exercise  of  a  power  of  appointment.  See 
Code  of  Va.,  §  2286  and  §  2513.1 

§  82.  What  May  be  Willed. — All  of  a  person's  property, 
real  or  personal,  which  would,  if  not  willed,  descend  to  his 
heirs,  or  pass  to  his  personal  representative.     But  in  Vir- 

1  Contract  to  Make  a  Will. — In  Rice  v.  Hartman,  84  Va.  251, 
it  is  held  that  when  one  in  his  lifetime,  for  a  valuable  considera- 
tion, promises  to  make  a  provision  by  his  will  for  another,  and 
dies  without  doing  so,  the  promisee  is  entitled,  in  a  suit  against 
the  promisor's  estate,  to  receive  such  sum  as  the  promisor,  in 
pursuance  of  his  contract,  ought  to  have  bequeathed  the  prom- 
isee. And  in  Thomas  v.  Armstrong,  86  Va.  323,  it  is  decided  that 
a  promise  to  leave  the  promisee  a  support  at  the  death  of  the 
promisor,  in  consideration  of  services  during  the  remainder  of 
the  promisor's  life,  to  be  performed  by  the  promisee,  is  enforce- 
able against  the  estate  of  the  promisor;  and  this,  though  the  con- 
tract is  not  in  writing,  as  Code  of  Va.,  §  2840,  cl.  7,  prohibiting 
an  action  "upon  any  agreement  that  is  not  to  be  performed  within 
a  year,"  does  not  apply  "if  by  its  terms,  or  by  reasonable  con- 
struction, a  contract  not  in  writing  can  be  fully  performed  within 
a  year,  although  it  can  only  be  done  by  the  occurrence  of  some 
improbable  event,  as  the  death  of  the  person  referred  to."  See 
Seddon  v.  Rosenbaum,  85  Va.  928. 

In  Hale  v.  Hale,  90  Va.  728,  it  is  said:  "There  is  no  doubt,  not- 
withstanding a  will  is  in  its  nature  ambulatory  until  the  tes- 
tator's death,  and  cannot  be  made  irrevocable,  that  a  person  may, 
by  a  definite  and  certain  contract,  bind  himself  to  dispose  of  his 
estate  by  will  in  a  particular  way,  and  that  such  a  contract,  in  a 
proper  case,  will  be  specifically  enforced  in  equity;  that  is  to  say, 
the  property  will  be  held  charged  with  a  trust  in  the  hands  of 
the  heir  at  law,  devisee,  personal  representative,  or  purchaser 
with  notice  of  the  agreement,  as  the  case  may  be,  and  a  convey- 
ance or  accounting  directed  in  accordance  with  the  terms  of  the 
agreement."  But  in  this  case  the  contract  was  in  respect  to  land, 
and  it  held  unenforceable  under  Code  of  Va.,  §  2840,  cl.  6,  requir- 
ing contracts  for  the  sale  of  real  estate  to  be  in  writing.  And  it 
was  further  held  that  the  circumstances  did  not  amount  to  part 
performance  so  as  to  make  a  case  for  specific  performance  of  the 
unwritten  contract  in  a  court  of  equity.  See  Maddlson  v.  Alder- 
son,  8  App.  Cas.  (H.  of  L.)  467. 


§§  81-83]  DEVISES.  105 

ginia  _a  man  cannot  will  away  his  wife's  dower  (Code  Va., 
§§  2270-'71),  nor  her  "thirds"  in  his  chattels.  (Code  Va., 
§  2559.)  Nor  can  a  woman  deprive  her  husband  of  his 
curtesy  in  her  land  "by  her  sole  act,"  whether  by  a  deed  or 
iby  will.  (Code  Va.,  §  2286.)  But  in  the  absence  of  a 
statute,  a  father  can  disinherit  his  children,  cut  them  off 
without  a  shilling.  But  the  property  must  be  actually 
devised  to  others,  or  the  children  (heirs)  will  inherit,  as  we 
have  already  seen.1    2  Bl.  Com.  (503). 

§  83.    The  Several  Sorts  of  Wills. 

(a).  Nuncupative  (i.  e,,  verbal).  Only  as  to  personalty. 
Not  now  allowed  in  England  nor  in  Virginia,  except  in  ease 
of  "a  soldier  being  in  actual  military  service,  or  a  mariner 
or  seaman  being  at  sea."  Code  Va.,  §  2516;  1  Vict.  chap. 
26,  §  13. 

1  Pretermitted  Children. — By  Code  of  Va.,  §  2527:  "If  any  per- 
son die  leaving  a  child,  or  his  wife  with  child  which  shall  be  born 
alive,  and  leaving  a  will  made  when  such  person  had  no  child 
living,  wherein  any  child  he  might  have  is  not  provided  for  or 
mentioned,  such  will,  except  so  far  as  it  provides  for  the  pay- 
ment of  the  debts  of  the  testator,  shall  be  construed  as  if  the  de- 
vises and  bequests  therein  had  been  limited  to  take  effect  in  the 
event  that  the  child  shall  die  under  the  age  of  twenty-one  years, 
unmarried  and  without  issue."  And  by  §  2528:  "If  a  will  be  made 
when  a  testator  has  a  child  living,  and  a  child  be  born  after- 
wards, such  after-born  child  or  any  descendant  of  his,  if  not 
provided  for  by  any  settlement,  and  neither  provided  for  nor 
expressly  excluded  by  the  will,  but  only  pretermitted,  shall  suc- 
ceed to  such  portion  of  the  testator's  estate  as  he  would  have 
been  entitled  to  if  the  testator  had  died  intestate;  towards  rais- 
ing which  portion,  the  devisees  and  legatees  shall,  out  of  what  is 
devised  and  bequeathed  to  them,  contribute  ratably,  either  in 
kind  or  in  money  as  a  court  of  equity  in  the  particular  case  shall 
deem  most  proper.  But  if  any  such  after-born  child,  or  descend- 
ant, die  under  the  age  of  twenty-one  years,  unmarried  and  with- 
out issue,  his  portion  of  the  estate,  or  so  much  thereof  as  may 
remain  unexpended  in  his  support  and  education,  shall  revert  to 
the  person  to  whom  it  was  given  by  will."  See  Conlam  v.  Doull, 
133  U.  S.  216. 


106  REAL.    PROPERTY.  [Chap.  6 

(b).  Olograph.  These  in  England  and  in  most  of  our 
States  are  required  to  be  witnessed,  no  distinction  being 
made  between  a  will  wholly  written  by  the  testator  himself 
and  one  written  for  him,  in  whole  or  in  part,  by  the  hand 
of  another.  But  in  six  or  seven  of  the  States  (including 
Virginia  and  West  Virginia)  an  olograph  will  need  not  be 
attested,  but  is  probated  on  proof  of  the  testator's  hand- 
writing. For  discussion  of  olograph  wills,  see  52  Am.  Dec. 
591-593,  note;  see  also  99  Am.  Dec.  729;  17  Am.  St.  Eep. 
798;  28  Id.  498. 

(c).  Not  olograph,  i,  e.,  not  wholly  in  the  testator's  hand- 
writing. These  everywhere  require  to  be  attested  by  sub- 
scribing witnesses — by  two  witnesses  in  England,  Virginia, 
and  many  of  the  States ;  and  by  three  witnesses  in  some  of 
the  States.  A  will  of  land  is  governed  by  the  law  of  the 
situs  (lex  loci  rei  sitae)  ;  a  will  of  personalty  by  the  law  of 
the  domicile  of  the  testator  (lex  domicilii).  Robertson  v. 
Fickrell,  109  U.  S.,  608;  Be  Vaughn  v.  Hutchinson,  165 
U.  S.,  566;  Boiling  v.  Boiling,  88  Va.,  524;  White  v.  Ten- 
nant,  31  W.  Va.,  790.  For  what  constitutes  domicile,  and 
how  it  may  be  changed,  see  Lamar  v.  Micou,  114  U.  S.,  218; 
Chicago,  etc.,  R.  Co.,  v.  Ohle,  117  U.  S.,  123;  Anderson  v. 
Watt,  138  U.  S.,  694;  Lindsay  v.  Murphy,  76  Va.,  428. 

§  84.    Formalities  for  Making  a  Will. 

(1).  What  is  a  sufficient  signing  by  the  testator? 

(a).  In  England.  "At  the  foot  or  end  thereof."  For 
meaning  of  these  words,  see  statute  of  15  and  16  Vict. 
ch.  24.  explaining  1  Vict.,  eh.  26 ;  Wms.  Eeal  Property,  205. 

(b).  In  Virginia.  "In  such  manner  as  to  make  it  mani- 
fest that  the  name  was  intended  as  a  signature."  Code  of 
Va.,  §  2514.  See  these  words  explained  in  Ramsey  v.  Ram- 
sey, 13  Grat.,  664;  Roy  v.  Roy,  16  Grat.,  418;  and  especially 
in  Warwick  v.  Warivich,  86  Va.,  596.  The  doctrine  estab- 
lished in  Virginia  is  that  unless  it  appears  affirmatively  on 
the  face  of  the  paper  that  the  name  of  the  testator  was 
intended  as  a  signature,  it  is  not  a  sufficient  signing  under 


§§83,84]  DEVISES.  107 

the  statute;  and  that  the  testator's  name  at  the  top  or  begin- 
ning of  the  will  is  an  equivocal  act,  and  will  therefore  be 
insufficient,  unless  there  be  on  the  face  of  the  will  evidence  to 
make  it  manifest  that  the  name  was  regarded  as  a  signature, 
and  that  the  instrument  was  to  be  complete  without  further 
signing.  So  that  in  Virginia  not  to  sign  a  will  at  the  foot  or 
end  is  hazardous  in  the  extreme.  In  Warwick  v.  Warwick, 
supra,  the  will  began  thus :  "I,  Abraham  Warwick,  Jr.,  declare 
this  to  be  my  last  will  and  testament."  Then  followed  the 
provisions  of  the  will  without  a  signature  at  the  end.  The 
testator  placed  the  paper  in  an  envelope  and  sealed  it,  and 
wrote  on  the  envelope:  "My  will,  Abraham  Warwick,  Jr." 
Held,  that  the  will  was  not  so  signed  as  to  satisfy  the  Virginia 
statute.  For  the  signature  at  the  top  of  the  will  was  an 
equivocal  act  per  se,  and  there  was  nothing  on  the  face  of  the 
will  to  remove  the  equivocation;  and  as  to  the  name  on  the 
envelope,  it  was  not  a  signature  at  all  to  the  will,  but  a 
mere  label  or  endorsement  of  the  envelope  which  contained 
what  the  testator  supposed  was  already  a  validly  executed 
will. 

(2).  Does  an  unsigned  attestation  clause  invalidate  an 
olograph  will  signed  by  the  testator?  This  question  is  an- 
swered in  the  negative  in  Perkins  v.  Jones,  84  Va.  358, 
on  the  ground  that  an  olograph  will  is  perfect  without  any 
attestation,  and  so  the  incomplete  attestation  clause  is  simply 
a  nullity,  not  affecting  the  validity  of  the  already  complete 
will. 

(3).  When  a  will  is  not  olograph,  and  must  have  two  wit- 
nesses, in  whose  presence  must  the  testator  sign  his  name? 
He  must  sign  in  the  presence  of  the  two  witnesses,  present 
at  the  same  time.  He  cannot  sign  or  acknowledge  the  will 
at  different  times,  in  the  presence  of  one  witness  only  at  each 
time,  but  he  must  sign,  or  acknowledge,  in  their  joint  pres- 
ence.   This  is  absolutely  essential  to  the  validity  of  the  will. 

(4).  In  whose  presence  must  the  witnesses  sign?  They 
must  sign  in  the  presence  of  the  testator,  but  need  not  sign 


108  REAL    PROPERTY.  [Chap.  6 

in  the  presence  of  each  other.  This  is  the  law  in  England 
and  in  Virginia,  and  is  said  to  be  the  general  rule.  Tied. 
E.  P.,  §  877.  That  subscribing  witnesses  need  not  sign  in 
each  other's  presence,  see  in  Virginia,  Parramore  v.  Taylor, 

11  Grat.  220;  Beam  v.  Yerby,  12  Id.  239;  Green  v.  Grain, 

12  Id.  252.  But  the  West  Virginia  Code  declares  that  the 
subscribing  witnesses  "shall  subscribe  the  will  in  the  pres- 
ence of  the  testator  and  of  each  other."  Code  of  W.  Va., 
chap.  77,  §  3;  and  this  is  no  doubt  law  in  other  States. 

(5).  What  is  meant  by  "in  the  presence  of  the  testator'"? 
In  Tiedeman  E.  P.,  §  877,  it  is  said :  "What  is  a  sufficient 
'presence'  is  governed  largely  by  circumstances.  In  de- 
termining this  question,  there  are  only  two  elements  to  be 
considered — first,  were  the  witnesses  at  the  time  of  the  sign- 
ing so  situated  that  the  testator  could  see  them ;  and,  secondly, 
was  he  in  a  conscious  state?  It  is  not  necessary  that  the 
testator  should  actually  see  the  signing,  if  he  was  in  a  posi- 
tion to  see  it  if  he  wanted  to.  Not  only  is  this  true,  but  if 
the  testator  is  blind,  the  will  will  be  properly  attested  if 
the  witnesses  when  signing  were  in  such  a  position  that  the 
testator  could  have  seen  them  if  he  had  had  his  sight,  And 
it  is  not  even  necessary  that  the  testator  should  be  in  the  same 
room  with  the  witnesses.  Attestation  in  a  different  room, 
although  presumptively  bad,  will  be  good  if  the  testator 
could  see  the  performance  of  the  act  of  attestation."  The 
Virginia  cases  are  in  accord  with  the  above  statement  of  the 
law.  As  to  subscription  within  the  testator's  potential  vision, 
see  Neil  v.  Neil,  1  Leigh  (6)  ;  Moore  v.  Moore,  8  Grat.  307; 
Noel  v.  Noel,  10  Id.  106;  Young  v.  Barrier,  27  Id.  96; 
Baldwin  v.  Baldwin,  81  Va.  405.  That  it  must  be  in  the 
testator's  conscious  presence,  i.  e.,  in  the  presence  of  a  con- 
scious testator,  see  Cheatham  v.  Hatcher,  30  Grat.  56;  Bald- 
win v.  Baldwin,  81  Va.  405 ;  Tucker  v.  Sandidge,  85  Va. 
546;  Chappel  v.  Trent,  90  Va.  849,  935. 

(6).  Can  the  testator  acknowledge  in  the  presence  of  wit- 
nesses his  signature  made  previously,  and  not  in  their  pres- 


§  84]  DEVISES.  109 

ence?  Yes,  under  Wills  Act  of  1  Victoria.  In  Virginia  the 
language  is,  "the  signature  shall  be  made,  or  the  will  acknowl- 
edged," in  the  presence  of  the  witnesses. 

(7).  Can  a  subscribing  witness  acknowledge,  in  the  testa- 
tor's presence,  his  signature  previously  made  out  of  the  testa- 
tor's presence?  No,  in  England,  by  1  Victoria.  See  Hind- 
marsh  v.  Charlton,  8  H.  of  L.  Cas.  159.  Yes,  in  Virginia,  by- 
statute  before  July  1,  1850.  Sturdivant  v.  Birchett,  10  Grat. 
67,  two  judges  dissenting.  Queer e,  now  in  Virginia,  under 
statute  taking  effect  July  1,  1850,  whose  phraseology  is  differ- 
ent from  the  former  statute.  The  decision  in  Birchett  v. 
Sturdivant  has  been  regretted.     See  2  Min.  Ins.  (920). 

(8).  What  must  the  subscribing  witnesses  attest  by  their 
signatures? 

(a).  In  England.  That  the  testator  has  already  signed 
the  will  in  the  presence  of  the  two  witnesses,  both  present 
together.  Until  the  testator  has  so  signed,  there  is  nothing 
to  be  attested.  See  Hindmarsh  v.  Charlton,  8  H.  of  L. 
Cas.  159,  161,  168.  Here  the  testator,  in  the  forenoon,  signed, 
in  the  presence  of  one  of  the  witnesses,  a  certain  Fred. 
Win.  Nap.  Wilson,  who  signed  his  name  in  the  presence  of 
the  testator,  but  did  not  cross  the  "F"  in  "Fred."  In  the 
afternoon,  the  other  witness,  Dr.  White,  was  present,  and 
the  testator  acknowledged  his  signature  in  the  presence 
of  Wilson  and  White,  both  present  together.  White  then 
signed  in  the  presence  of  the  testator,  and  Wilson  added  the 
cross  to  the  "F"  in  "Fred,"  and  wrote  the  day  and  month. 
Held,  an  invalid  execution.  For  when  Wilson  signed  his 
name  in  the  forenoon,  when  the  testator  has  signed  in  his 
presence  only,  there  was  nothing  to  attest;  and  though  the 
testator  in  the  afternoon  acknowledged  his  signature  in  the 
joint  presence  of  both  witnesses,  Wilson  did  not,  after  that, 
subscribe  his  name,  an  acknowledgment  by  him  not  being 
sufficient,  and  the  crossing  of  the  "F"  not  amounting  to  a 
new  signature. 

(b).  In  Virginia.     It  is  held  contrary  to  Hindmarsh  v. 


110  REAL    PROPERTY.  [Chap.  6 

Charlton,  that  a  witness  may  subscribe  the  will  before  it  has 
been  signed  or  acknowledged  by  the  testator  in  the  presence 
of  two  witnesses,  both  present  together,  if  it  is  subsequently 
acknowledged  by  the  testator  in  the  joint  presence  of  the  two 
witnesses.  See  Parramore  v.  Taylor,  11  Grat.  226;  Beane  v. 
Yerby,  12  Id.  237;  Green  v.  Cram,  12  Id.  252.  This  Virginia 
doctrine  is  not  to  be  commended.  See  in  favor  of  the  English 
doctrine,  87  Am.  Dec.  687;  1  Eedfield  on  Wills,  226,  and 
note  6. 

(9).  What  amounts  to  a  signature  as  a  subscribing  wit- 
ness ? 

The  signature  must  be  by  way  of  attestation,  not  as  an 
agent  only.  See  Peake  v.  Jenkins,  80  Va.  293,  where  the 
execution  of  the  will  was  as  follows : 

"Anna  L.  Jenkins, 
"By  Mary  F.  Holladay." 
"April  13,  1870. 

"Witness : 
"Lucy  P.  B.  Lipscomb." 

Held,  Mary  F.  Holladay,  who  had  written  the  will  for 
Anna  L.  Jenkins,  and  signed  Anna  L.  Jenkins'  name,  had 
written  her  own  name,  not  as  a  witness,  but  to  indicate 
agency,  and  so  the  will  failed  for  lack  of  two  witnesses.. 

(10).  Form  of  Attestation.  No  form  is  required,  but  it 
is  better  to  have  the  subscribing  witnesses  sign  a  form  of 
attestation,  reciting  compliance  with  all  the  formalities  re- 
quired. The  following  form  is  believed  to  be  sufficient  every- 
where : 

"Signed,  sealed,  published,  and  declared  by  William  Brown 
(the  testator),  as  and  for  his  last  will  and  testament,  in  the 
presence  of  us,  all  three  present  at  the  same  time,  who,  at 
his  request,  in  his  presence,  and  in  the  presence  of  one 
another,  have  hereunto  subscribed  our  names  as  attesting  wit- 


§§84,85]  DEVISES.  Ill 

nesses."     Then  follow  the  signatures  of  three  attesting  wit- 
nesses.1 

The  above  contains  more  than  is  required  in  Virginia.  We 
require  two  witnesses  only,  and  the  witnesses  need  not 
subscribe  in  the  presence  of  each  other,  but  only  in  the 
presence  of  the  testator.  And  a  will,  unlike  a  deed,  does  not 
require  to  be  sealed.  But  the  above  formalities  can  do  no 
harm,  and  it  is  better  to  observe  them;  and  it  is  safer  to 
have  three  witnesses. 

§85.  Who  are  Competent  Witnesses  to  a  Will?— The 
Virginia  statute  says  that  the  testator  must  sign  "in  the 
presence  of  at  least  two  competent  witnesses."  At  common 
law  interest  in  the  result  of  a  suit  disqualified  a  witness  to 
testify;  but  the  general  disqualification  is  removed  in  Vir- 
ginia by  Code  of  Va.,  §  3345,  enacting  that  "no  person  shall 
be  incompetent  to  testify  by  reason  of  interest."  But  §  3346 
qualifies  §  3345  by  declaring  that  "the  competency  of  at- 
testing witnesses  to  wills  and  deeds  shall  be  determined  by 
the  law  in  force  the  day  before  this  code  takes  effect";  i.  e., 
by  the  common  law  as  modified  by  previous  statutes.  And 
by  §  3346  husband  and  wife  were  disqualified  still,  as  at 
common  law,  to  testify  for  or  against  each  other.  Hence, 
legatees  and  devisees,  and  the  husband  or  wife  of  a  legatee 
or  devisee,  remained  in  Arirginia  incompetent  witnesses  to 
wills.2     But   it  is  provided  by   Code  of  Va.,   §    2529,  that 

1  In  4  Min.  Ins.  (3rd  ed.),  pp.  1613-1618,  the  form  of  attestation 
given  is  as  follows:  "Signed  and  published  by  T.  T.,  as  and  for 
his  last  will,  in  the  presence  of  us,  who  in  his  presence,  and  in 
the  presence  of  each  other,  have  hereunto  subscribed  our  names 
as  witnesses."  This  is  defective,  because  of  its  omission  to  state 
that  the  testator  signed  in  the  presence  of  the  witnesses  present 
at  the  same  time.  The  statement  that  the  subscribing  winesses 
signed  in  the  presence  of  each  other  is  not  necessary  in  Vir- 
ginia, as  is  stated  above. 

-  Husband  and  Wife  as  Witnesses  to  Wills. — Are  husband  and 
wife  now  in  Virginia  competent  witnesses  to  wills,  under  Acts 
1893-94,  p.  722,  c.  619,  declaring  that,  "husband  and  wife  shall  be 


112  REAL    PROPERTY.  [Chap.  6 

"if  a  will  be  attested  by  a  person  to  whom,  or  to  whose  wife 
or  husband,  any  beneficial  interest  in  any  estate  is  thereby 
devised  or  bequeathed,  if  the  will  may  not  be  otherwise  proved, 
such  person  shall  be  deemed  a  competent  witness,  but  such 
devise  or  bequest  shall  be  void,  except  that  if  such  witness 

competent  to  testify  for  and  against  each  other  in  all  civil  cases," 
with  certain  exceptions  not  relating  to  wills?  Suppose,  (1)  that 
a  wife  attests  the  will  of  her  husband  under  which  she  is  not 
a  beneficiary;  (2)  that  she  attests  his  will  and  is  also  a  legatee 
or  devisee;  and  (3)  that  she  attests  the  will  of  a  third  person 
under  which  he  is  a  beneficiary.  Is  she  a  competent  witness?  In 
Pease  v.  Allis,  110  Mass.,  157  (14  Am.  Rep.,  591),  it  appeared  that 
one  of  the  three  witnesses  to  the  will  of  William  S.  Allis  was 
his  wife.  It  was  held  that  she  was  incompetent  and  the  will  in- 
valid. The  following  is  the  opinion  by  Chapman,  C.  J.:  "By  the 
Gen.  Stats,  [of  Massachusetts],  ch.  92,  §  6,  a  will  must  be  sub- 
scribed by  three  or  more  competent  witnesses.  They  must  be 
competent  at  the  time  of  the  attestation  of  the  will.  By  the  com- 
mon law  it  is  a  settled  principle  that  husbands  and  wives  could 
not,  in  any  case,  be  admitted  as  witnesses  for  or  against  each 
other  independently  of  the  question  of  interest.  None  of  our 
statutes  have  changed  the  rule  in  this  respect  as  to  the  attesta- 
tion of  wills,  and  the  rule  applies  to  such  attestation.  As  the 
wife  of  the  testator,  in  this  case,  was  not  a  competent  witness 
when  the  will  was  executed,  his  death  did  not  make  her  com- 
petent." 

In  Virginia,  Code  of  Va.,  §  3345,  enacting  that,  "no  person. shall 
be  incompetent  to  testify  because  of  interest,"  was  qualified  by 
§  3346,  which  declared  that  it  should  not  affect  "the  competency 
of  husband  and  wife  as  witnesses  for  or  against  each  other  during 
the  coverture  or  after  its  termination";  and  that  "the  competency 
of  attesting  witnesses  to  wills,  deeds  and  other  instruments  shall 
be  determined  by  the  law  in  force  the  day  before  this  Code  takes 
effect."  But  now,  by  Acts  1893-94,  c.  619,  above  cited,  it  is  de- 
clared that  husband  and  wife  shall  be  competent  witnesses  for 
or  against  each  other  in  all  civil  cases.  If  this  was  not  intended 
to  extend  to  wills,  it  should  have  been  so  stated  in  the  proviso 
as  a  third  exception  to  the  two  that  are  there  made. 

But  Code  of  Va.,  §  3346,  after  abolishing  the  disqualification  of 
interest,  declares  that  this  shall  not  affect  the  competency  of  at- 
testing witnesses  to  wills,  deeds,  etc.  It  would  seem  to  follow, 
therefore,    construing   Acts   1893-94,   c.    619,   in   connection   with 


§§85,86]  DEVISES.  113 

would  be  entitled  to  any  share  of  the  estate  of  the  testator, 
in  ease  the  will  was  not  established,  so  much  of  his  share  shall 
be  saved  to  him  as  shall  not  exceed  the  value  of  what  is  so 
devised  or  bequeathed.''  The  statute  destroys  the  interest  of 
the  devisee  or  legatee  witness,  and  thereby  makes  him  compe- 
tent to  prove  the  will  for  the  benefit  of  the  other  devisees  or 
legatees.  By  Code  of  Va.,  §  2530,  creditors  are  competent, 
although  the  will  may  charge  the  estate  with  the  payment  of 
debts.    And  by  §  2531,  executors  are  competent.1 

§  86.    Effect  of  a  Duly  Executed  Codicil  on  a  Will  not 
Duly  Executed. — The  effect  is  to  establish  the  will  as  well  as 

Code  of  Va.,  §  3346,  that  husband  and  wife  are  now  in  the  situa- 
tion of  persons  no  longer  under  a  general  disqualification  to  tes- 
tify for  or  against  each  other  in  civil  cases,  but  that  they  are 
still  incompetent,  as  before  the  statute,  as  witnesses  to  wills, 
deeds,  etc.,  just  as  if  their  general  incompetency  as  witnesses  had 
been  removed  by  the  Code  of  Va.,  §  3345  followed  by  §  3346,  de- 
claring that  this  should  not  affect  the  competency  of  subscribing 
witnesses  to  wills,  deeds  and  other  instruments.  From  this  point 
of  view,  Code  of  Va.,  §  2529,  so  far  as  it  relates  to  a  will  attested 
by  a  person  to  whose  wife  or  husband  any  beneficial  interest  in 
any  estate  is  thereby  devised  or  bequeathed,  remains  unaffected 
by  Acts,  1893-'94,  declaring  that,  "husband  and  wife  shall  be 
competent  to  testify  for  or  against  each  other  in  all  civil  cases." 

1  Devisee  or  Legatee  as  an  Attesting  Witness. — In  Davis  v. 
Davis,  (W.  Va.),  27  S.  E.  323,  there  is  an  elaborate  discussion  of 
Code  of  W.  Va.,  c.  77,  §  18  (the  same  as  Code  of  Va.,  §  2529, 
supra),  and  it  is  held  that  if  a  will  can  be  proved  at  the  probate 
independently  of  the  testimony  of  an  attesting  witness  beneficially 
interested  therein,  a  devise  or  bequest  to  such  witness,  or  her 
husband,  is  not  void.  In  this  case,  the  will  of  Charles  W.  Davis 
was  attested  by  Mrs.  Delilah  Davis,  to  whom  and  to  whose  hus- 
band, devises  and  bequests  were  made.  The  other  subscribing 
witness  (two  being  required)  took  nothing  under  the  will.  The 
will  was  probated  upon  the  testimony  of  the  disinterested  wit- 
ness; and  a  bill  to  declare  void  the  legacies  and  devises  to  De- 
lilah Davis  and  her  husband  was  dismissed.  The  decision  was 
placed  on  two  grounds:  (1)  That  there  were  two  competent  wit- 
nesses at  the  time  of  the  attestation  of  the  will;  (2)  That  a  will 
must  be  subscribed,  but  need  not  be  proved,  by  two  attesting  wit- 

8 


114  REAL    PROPERTY.  [Chap.  6 

the  codicil,  and  the  codicil  amounts  to  a  republication  of 
the  will,  and  brings  it  down  to  the  date  of  the  codicil,  so  that 
they  both  speak  as  of  the  date  of  the  codicil.  See  Corr  v. 
Porter,  33  Grat.  278 ;  Hatcher  v.  Hatcher,  80  Va.  169 ;  Barney 
v.  Hayes  (Mont.),  28  Am.  St.  E.  495;  Gilmor's  Estate  (Pa.), 
35  Am.  St.  E.  855;  Hobart  v.  Hobart  (111.),  45  Am.  St.  E, 
151.  But  in  order  that  the  codicil  may  have  this  effect, 
the  execution  of  the  codicil  must  be  such  as  would  have 
sufficed  for  the  will  if  the  will  had  been  so  executed.  Thus 
the  following  papers  do  not  constitute  a  valid  will  in  Vir- 
ginia, No.  1  and  No.  2,  being  offered  together  for  probate : 

nesses,  even  though  the  other  attesting  witness  be  alive  and 
within  the  jurisdiction  of  the  court.  Hence,  as  in  this  case,  the 
will  was  "otherwise  proved,"  viz.,  by  the  other  attesting  witness, 
Mrs.  Davis  was  not  needed  as  a  witness  at  the  probate,  and  so 
her  interest  and  that  of  her  husband  was  not  forfeited. 

Upon  the  first  point,  it  is  conceded  by  the  court  that  under  the 
statute  (Code  of  W.  Va.,  c.  77,  §  18;  Code  of  Va.,  §  2514),  there 
must  be  two  witnesses  competent  at  the  time  of  the  attestation. 
But  the  court  says:  "The  only  reasonable  way  to  construe  §§  3, 
18,  c.  77,  Code  [Code  of  Va.,  §§  2514,  2529],  is  that  the  word  'com- 
petent,' as  used  in  each  one  of  them,  refers  to  the  separate  time 
to  which  they  relate;  the  first  to  the  attestation,  the  second  to 
the  proof  of  the  will.  Mrs.  Davis  was  competent  as  an  attesting 
witness.  While  she  was  interested  in  the  will,  the  testator  was 
alive,  and  if  the  question  of  the  attestation  had  arisen  during  his 
life,  they  were  both  competent  to  testify  in  relation  thereto. 
Hence,  the  word  'competency,'  in  so  far  as  it  relates  to  an  attest- 
ing witness,  excludes  the  question  of  interest,  and  has  reference 
to  age,  sanity  and  moral  integrity.  As  used  in  the  eighteenth 
section,  in  relation  to  the  proof  of  the  will,  it  has  reference  merely 
to  the  question  of  beneficial  interest,  its  object  being  to  remove 
all  motive  for  false  swearing  or  forgery,  and  also  the  incompe- 
tency of  the  witness,  occasioned  by  the  death  of  the  testator,  thus 
throwing  on  the  beneficiaries  thereunder  the  burden  of  sustain- 
ing the  will  independently  of  their  own  testimony.  If  the  will 
can  be  thus  sustained,  it  is  sustained  as  a  whole,  and  not  in  parts, 
and  none  of  the  provisions  are  void,  but  all  the  beneficiaries  take 
under  it,  even  though  the  attesting  witnesses  were  incompetent 
[i.  e.,  to  testify  at  the  probate]  on  account  of  interest.     .      .      . 


§  86]  DEVISES.  115 

No.  1.  "I,  Elizabeth  Holmes,  do  make  the  following  as 
my  last  will  and  testament,  I  give  all  my  estate,  both  real 
and  personal,  to  my  two  sisters,  Margaret  and  Sally."  No.  1 
is  not  in  the  handwriting  of  the  testatrix,  nor  signed  by  her. 
About  an  inch  below,  on  the  same  sheet  of  paper,  is  written 
the  codicil. 

No.  2.  "As  Margaret  is  dead,  I  give  her  share  to  my  niece, 
Lizzie  Leigh  Gibson."  This  last  was  wholly  in  the  handwrit- 
ing of  the  testatrix,  and  signed  by  her.  Held,  that  the  codicil, 
No.  2,  does  not  suffice  to  make  No.  1  and  No.  2  the  will  of 
Elizabeth  Holmes ;  but  it  would  have  been  otherwise  if  No.  1 
had  been  wholly  in  the  testatrix's  handwriting,  or  if  No.  2 

The  will  is  fully  established  by  the  other  attesting  witness.  It 
might  have  occurred  that  the  will  could  not  have  been  established 
without  the  evidence  of  Mrs.  Davis,  and  in  such  case  to  make 
her  competent  as  against  the  heirs  of  the  testator,  her  beneficial 
interest  would  have  to  be  avoided."  See  Croft  v.  Croft,  4  Grat. 
103,  where  there  were  two  subscribing  witnesses  to  a  will,  to  one 
of  whom  the  testator  devised  a  tract  of  land.  The  other  subscrib- 
ing witness  being  dead,  the  will  was  probated  on  the  testimony 
of  the  devisee  witness,  whose  devise  thereupon  became  void. 

Whether  the  decision  in  Davis  v.  Davis  will  be  followed  in  Vir- 
ginia, remains  to  be  seen.  It  is  possible  that  it  might  be  held  that 
the  subscribing  witness  who  takes  a  benefit  under  a  will  is  in- 
competent at  the  time  of  the  attestation,  and  that  both  of  the 
subscribing  witnesses  should  be  examined  at  the  probate,  if 
both  are  alive  and  within  the  jurisdiction  of  the  court.  The  true 
view  of  the  statute  would  then  be  that  the  words  "if  the  will  may 
not  be  otherwise  proved"  have  reference  to  the  case  where  the 
devisee  or  legatee  if  needed  as  an  attesting  witness,  to  make  up 
the  number  required  by  law,  in  which  case  he  is  made  a  compe- 
tent attesting  witness  by  the  avoidance  of  his  interest,  and  he 
may  also  be  called  to  testify  at  the  probate  of  the  will.  And, 
conversely,  a  will  may  be  otherwise  proved  when  there  is  an  ex- 
tra or  superfluous  attesting  witness,  beyond  the  number  required 
by  the  statute.  This  view  would  assimilate  the  law  of  Virginia 
to  that  of  many  of  the  other  States.  See  Tiedeman,  1  Real  Prop. 
§  878,  where  it  is  said:  "The  common  law  rule  is,  that  if  a  wit- 
ness to  a  will  is  interested  in  it  as  a  legatee  or  devisee,  the  will 
is  void.   But  now,  in  most  of  the  States,  it  is  provided  by  statute 


116  REAL    PROPERTY.  [Chap.  6 

had  been  attested  by  two  witnesses.  Gibson  v.  Gibson,  28  Grat. 
440.  See  1  Lorn.  Executors,  70;  1  Jarman  on  Wills,  228,  260; 
1  Eedf.  on  Wills,  260-'68;  1  Cr.  &  Mees,  42;  4  N.  Y.  140;  39 
Am.  Dec.  469 ;  10  Am.  St.  R.  873,  note.  See  Darling  v.  Gum- 
ming, 92  Va.  521;  Gordon  v.  Whitlock,  92  Va.  723. 

§  87.  Initials. — The  initials  of  the  testator's  name  are  a 
sufficient  signature  in  England,  where  all  wills  are  required 
to  be  attested.  Queers,  in  Virginia  as  to  olograph  wills  not 
attested.  See  McBride  v.  McBride,  26  Grat.  476,  where  the 
point  was  left  undecided. 

§  88.  Letters,  etc.,  as  Wills. — A  will  can  be  in  the  form 
of  a  letter,  deed,  settlement,  etc.  If  the  writing  contains  a 
disposition  of  the  signer's  property  to  take  effect  after  his 
death,  it  will  be  considered  a  testamentary  act  whatever  the 
form  of  the  instrument.  But  the  identical  paper  must  have 
intended  as  itself  a  disposition  of  the  property,  and  this  dispo- 
sition must  be  such  as  the  law  deems  testamentar}',  whether 
the  signer  so  understood  it  or  not.  See  McBride  v.  McBride, 
26  Grat.  476,  where  a  letter  reciting  the  provisions  of  an  un- 
executed will  was  offered  for  probate  as  an  olograph  will,  but 
was  rejected  on  the  ground  that  the  very  paper  (i.  e.,  the  let- 
ter) was  not  intended  to  be  a  disposition  of  property  at  all, 
the  writer  directing  the  letter  to  be  burnt,  and  fully  expecting 
to  execute  a  formal  will,  but  dying  suddenly  before  he  did  so. 
See  also  Hood  v.  Haden,  82  Va.  588;  Smith  v.  Houseman 

that  in  such  a  case  the  will  [shall]  he  good,  but  the  devise  or 
legacy  to  the  witness  shall  be  void.  In  some  of  the  States,  the 
devise  is  declared  absolutely  void,  but  generally  the  devise  is 
void  only  when  there  is  not  a  sufficient  number  of  witnesses  with- 
out the  disqualified  witness."  And  in  Redfield,  Wills,  "Vol.  I., 
p.  *258,  note:  "But  in  many  of  the  American  States,  the  statute 
only  renders  the  estate  of  witnesses  to  a  will,  who  take  a  bene- 
ficial interest  under  it,  void  to  the  extent  of  the  number  required 
to  give  validity  to  the  instrument.  And  where  supernumerary 
names  appear  upon  the  paper  as  witnesses,  those  will  first  be 
taken  to  complete  the  required  number  who  take  no  benefit  under 
the  will." 


§§  86-89]  DEVISES.  117 

(Va.),  20  S.  E.  830;  Swann  v.  Houseman,  90  Va,  816;  Clai- 
borne v.  Radford,  91  Va.  527;  Roberts  v.  Coleman,  37  W.  Va. 
143;  Estate  of  Knox  (Pa.),  17  Am.  St.  E.  798;  Hazleton  v. 
Reed  (Kan.),  26  Am.  St.  R.  86;  Barney  v.  Hayes  (Mont.), 
28  Am.  St.  R.  495.  For  a  love  letter  probated  as  a  will,  see 
1  Va.  Law  Reg.  627. 

§  89.  Time  at  Which  a  Will  Speaks. — A  will  of  personalty 
"speaks"  (i.  e.,  takes  effect)  at  the  death  of  the  testator.  But 
under  the  Wills  Act  of  32  Henry  VIII.,  a  devise  of  land  was 
regarded  as  a  present  conveyance,  and  "spoke"  as  of  its  date. 
The  consequence  was  that  a  devise  of  "all  the  testator's  land" 
passed  only  the  land  he  owned  at  the  date  of  the  will,  and 
after-acquired  land  could  not  pass.  And  so  if  the  land  owned 
at  the  date  of  the  will  was  sold  by  the  testator,  and  then  re- 
purchased by  him  before  his  death,  it  could  not  pass  unless 
the  will  was  republished  after  such  repurchase.  And  a  re- 
siduary devisee  of  the  residue  of  the  lands  not  devised  could 
only  take  the  residue  of  the  testator's  lands  owned  at  the  date 
of  the  will,  and  not  other  lands  subsequently  acquired.  And 
if  any  person  to  whom  land  was  devised  died  in  the  testator's 
lifetime,  the  lapsed  devise  could  not  pass  to  the  residuary 
devisee,  but  descended  to  the  heir  at  law.  Raines  v.  BarTcer, 
13  Grat.  128. 

The  above  doctrines  are  all  changed  by  the  Wills  Act  of 
1  Victoria.  A  devise  now  in  England,  like  a  will  of  per- 
sonalt}1,  speaks  as  at  the  death  of  the  testator.  Hence,  a 
devise  can  now  pass  after-acquired  land,  and  a  lapsed  devise 
does  not  pass  to  the  heir,  but  goes  to  the  residuary  devisee. 
See  Wins.  E.  P.  (209).  And  in  Virginia,  by  Code,  §  2521: 
"A  will  shall  be  construed,  with  reference  to  the  real  estate 
and  the  personal  estate  comprised  in  it,  to  take  effect  and 
speak  as  if  it  had  been  executed  immediately  before  the  death 
of  the  testator,  unless  a  contrary  intention  shall  appear  by  the 
will."  Wildberger  v.  Cheek  (Va.),  27  S.  E.  441..  And  by 
§  2524,  it  is  provided  that  "unless  a  contrary  intention  appear 
by  the  will,  such  real  estate,  or  interest  therein,  as  shall  be 


118  REAL    PROPERTY.  [Chap.  6 

comprised  in  such  will,  which  shall  fail,  or  be  void,  or  other- 
wise incapable  of  taking  effect,  shall  be  included  in  the  re- 
siduary devise,  if  any,  contained  in  such  will."  Under  these 
statutes  in  Virginia,  (1)  a  devise  can  pass  after-acquired 
lands;  and  (2)  a  devise  which  fails  enures  to  the  benefit  of 
the  residuary  devisee.   See  Stonestreet  v.  Doyle,  75  Va.  356. 

§  90.  Lapsed  Devises  (i.  e.,  when  the  devisee  dies  before 
the  testator). 

(a).  Before  1  Victoria,  in  England,  a  fee-simple  or  a  fee- 
tail  to  A  would  lapse  by  A's  death  before  the  testator,  al- 
though A  left  heirs  or  heirs  of  his  body,  the  devise  being  to  A 
alone  as  the  purchaser,  and  not  to  benefit  his  heirs. 

( b ) .  By  1  Victoria,  no  estate-tail  shall  lapse  if  the  devisee 
leaves  issue  who  survive  the  testator,  but  it  shall  take  effect  as 
if  the  devisee  had  died  immediately  after  the  testator,  instead 
of  before  him.  And  a  fee-simple  to  a  child  or  descendant  of 
the  testator  shall  not  lapse,  if  such  child,  etc.,  dying  before 
the  testator,  leaves  issue  surviving  the  testator. 

(c).  Now  in  Virginia,  by  Code  of  Va.,  §  2523:  "If  a  dev- 
isee or  legatee  die  before  the  testator,  leaving  issue  who 
survive  the  testator,  such  issue  shall  take  the  estate  devised, 
or  bequeathed,  as  the  devisee  or  legatee  would  have  done  had 
he  survived  the  testator,  unless  a  different  disposition  thereof 
be  made  or  required  by  the  will."  And  under  §  2523,  where 
a  testator  bequeathed  money  to  a  sister  who  had  died  before 
the  execution  of  the  will,  leaving  issue  who  survived  the  tes- 
tator ;  it  was  held  that  the  legacy  did  not  lapse,  but  passed  to 
such  issue.    Wildberger  v.  Cheek  (Va.),  27  S.  E.,  441. 

§  91.    Revocation  of  a  Will. 

(a).  By  Code  of  Va.,  §  2517:  "Every  will  made  by  a  man 
or  woman  shall  be  revoked  by  his  or  her  marriage,  except  a 
will  made  in  the  exercise  of  a  power  of  appointment,  when  the 
estate  thereby  appointed  would  not,  in  default  of  such  appoint- 
ment, pass  to  his  or  her  heir,  personal  representative,  or  next 
of  kin."  Phaup  v.  Wooldridge,  14  Grat.,  332. 


§§  89-91]  DEVISES.  119 

(&).  By  Code  of  Va.,  §  2518:  "No  will  or  codicil,  or  any 
part  thereof,  shall  be  revoked  unless  under  the  preceding  sec- 
tion (i.  e.,  by  marriage) ;  or  by  a  subsequent  will  or  codicil, 
or  by  some  writing  declaring  an  intention  to  revoke  the  same, 
and  executed  in  the  manner  in  which  a  will  is  required  to  be 
executed;  or  by  the  testator,  or  some  person  in  his  presence, 
and  by  his  direction,  cutting,  tearing,  burning,  obliterating, 
cancelling  or  destroying  the  same,  or  the  signature  thereto, 
with  intent  to  revoke  [animo  revocandi.~\.,n 

(c).  By  Code  of  Va.,  §  2519:  "No  will  or  codicil,  or  any 
part  thereof,  which  shall  be  in  any  manner  revoked,  shall, 
after  being  revoked,  be  revived  otherwise  than  by  the  re- 

1  Revocation  of  Wills. — See  on  whole  subject,  28  Am.  St.  R., 
344-362,  note.  As  to  revocation  by  mistake,  see  Giddings  v.  Gid- 
dings (Conn.),  48  Am.  St.  R.,  192.  As  to  revocation  by  marriage, 
see  Roane  v.  Hollingshead  (Md.),  35  Am.  St.  R.,  438;  also,  Hale 
v.  Hale,  90  Va.,  728,  where  it  is  held  that  the  mistaken  view  of  a 
testatrix  that  her  marriage  subsequent  to  the  execution  of  the 
will  was  not  a  revocation  thereof  does  not  estop  her  heirs  from 
claiming  that  the  will  was  revoked  under  §  2517.  For  a  case 
where  a  deed  of  land  in  the  testator's  lifetime  operated  as  a  revo- 
cation of  a  prior  devise  of  the  lands,  see  Collup  v.  Smith,  89  Va. 
258.  Cf.  Code  of  Va.,  §  2520. 

In  Gordon  v.  Whitlock,  92  Va.,  723,  it  is  held  (as  stated  in  the 
head  note)  that  the  mere  fact  of  making  a  subsequent  testamen- 
tary paper  does  not  work  a  revocation  of  a  prior  one  in  the  ab- 
sence of  express  revocation,  unless  the  two  are  incapable  of  stand- 
ing together.  A  will  need  not  be  confined  to  one  paper,  but  may 
consist  of  several  testamentary  papers  of  different  dates,  and  exe- 
cuted and  attested  in  different  ways  and  at  different  times.  The 
expression  in  a  subsequent  will:  "This  is  my  last  will,"  is  not 
entitled  to  any  weight.  If  the  subsequent  paper  is  merely  sup- 
plemental, it  will  be  treated  as  a  codicil;  if  partially  conflicting, 
that  of  the  later  date  will  operate  to  revoke  the  former  so  far  as 
the  provisions  of  the  two  are  conflicting  or  incompatible.  But  in 
the  absence  of  a  clause  of  revocation,  the  court  will  adopt  that 
construction  which  will  give  effect  to  all  the  testamentary  papers, 
if  possible,  sacrificing  the  earlier  papers  only  so  far  as  they  are 
clearly  irreconcilable  with  the  latter.  And  see  Jinkins  v.  Law- 
rence, 86  Va.,  35. 


120  REAL    PROPERTY.  [Chap.  6 

execution  thereof,  or  by  a  codicil  executed  in  manner  herein- 
before required,  and  then  only  to  the  extent  to  which  an  inten- 
tion to  revive  the  same  is  shown/'2 

§  92.  Lost  Wills. — A  lost  will  can  be  probated  provided 
there  has  once  been  a  will  duly  executed,  which,  after  the  tes- 
tator's death,  cannot  be  found  because  lost,  or  destroyed 
without  intent  to  revoke,  as  if  lost  in  an  accidental  fire.  The 
contents  of  such  lost  will  may  be  proved  by  secondary  evi- 
dence, i.  e.,  by  the  testimony  of  witnesses  familiar  therewith. 
Thus  the  last  will  of  Sir  Edward  Sugden  (afterward  Lord 
St.  Leonards)  was  probated  on  the  testimony  of  his  daughter, 
Miss  Charlotte  Sugden,  who  had  been  his  secretary.  Sugden 
v.  Lord  St.  Leonards,  1  Probate  Div.,  154.  See  also  Apperson 
v.  Dowdy,  82  Va.,  776  j  Lower  v.  Seeds,  28  W.  Va.,  113 ;  84 
Am.  Dec.  628-631,  note;  in  re  Ellis'  Estate  (Minn.),  43  Am. 
St.  E.,  514. 

§  93.  Testamentary  Capacity. — "It  is  not  necessary  that 
a  person  should  possess  the  highest  qualities  of  mind  in  order 
to  make  a  will,  nor  that  he  should  have  the  same  strength  of 
mind  that  he  may  formerly  have  had.     The  mind  may  be  in 

2  The  effect  of  §  2519  of  the  Code  of  Va.  was  considered  in  Rudi- 
sill  v.  Rodes,  29  Grat.,  147.  John  Rudisill  died  in  1874,  having,  in 
his  lifetime,  made  and  published,  successively,  three  wills,  dated, 
the  first  on  the  22nd  day  of  January,  1868,  the  second  on  the  14th 
day  of  February,  1871,  and  the  third  and  last  in  the  month  of 
April  or  May,  1872.  The  second  contained  a  clause  revoking  all 
former  wills,  and  the  third  contained  a  similar  clause.  The  tes- 
tator destroyed  the  third  will  animo  revocandi,  leaving  the  other 
two  uncancelled;  and  the  question  arose  whether,  by  the  destruc- 
tion of  the  third  and  last  will,  the  second  was  revived.  It  was 
held,  in  an  opinion  by  Judge  Burks,  that  under  the  express  lan- 
guage of  §  2519  the  destruction  of  the  third  will  could  not  oper- 
ate to  revive  the  second;  for  the  second  had  been  revoked  by  the 
third,  and  after  that  could  not  be  revived  "otherwise  than  by  the 
re-execution  thereof,  or  by  a  codicil  executed  in  manner  herein- 
before required,  and  then  only  to  the  extent  that  an  intention  to 
revive  the  same  is  shown." 


§§  91-96]  DEVISES.  121 

some  degree  debilitated,  the  memory  may  be  enfeebled,  the  un- 
derstanding may  be  weak,  the  character  may  be  eccentric,  and 
he  may  even  want  the  capacity  to  transact  many  of  the  ordi- 
nary business  affairs  of  life.  It  is  sufficient  if  he  understands 
the  nature  of  the  business  in  which  he  is  engaged,  has  a  recol- 
lection of  his  property  which  he  means  to  dispose  of,  the  ob- 
jects of  his  bounty,  and  the  manner  in  which  he  wishes  to  dis- 
tribute it  among  them."  Nicholas  v.  Eirchner,  20  W.  Va. 
251.  See  also  Kerr  v.  Lunsford,  31  W.  Va.,  659;  Eiett  v. 
Shull,  36  W.  Va.,  563;  Martin  v.  Thayer,  37  W.  Va.,  38; 
Young  v.  Barner,  27  Grat.,  96;  Montague  v.  Allan,  78  Va., 
592;  Chappell  v.  Trent,  90  Va.,  849.  For  full  discussion  of 
undue  influence  as  affecting  the  validity  of  wills,  see  31  Am. 
St.  E.  670-691.  For  fraud  in  procuring  wills,  see  Tucker 
v.  Sandidge,  85  Va.,  546;  Walters  v.  Walters,  89  Va.,  849. 

§  94.  Wills  of  Personalty. — We  have  seen  that  the  formali- 
ties for  wills  of  realty  and  personalty  are  now  the  same  in 
England  and  Virginia.  And  in  connection  with  devises  of 
land,  it  is  convenient  to  consider  briefly  the  administration  of 
personal  property,  and  the  several  sorts  of  legacies. 

§  95.  Personal  Representatives. — These  are  (a)  Execu- 
tors, and  (&)  Administrators.  The  executor  is  appointed  by 
the  testator,  being  named  in  the  will ;  the  administrator  is  ap- 
pointed by  the  court  when  there  is  no  will  or  no  executor 
named.  The  title  to  all  the  personalty  owned  by  a  decedent 
at  his  death  vests  in  his  executor  or  administrator.  Brocken- 
brough  v.  Turner,  78  Va.  438;  Perdue  v.  Dillon,  89  Va.  182. 
But  the  executor  or  administrator,  as  such  has  nothing  to  do 
with  the  decedent's  real  estate.  The  title  to  real  estate  is  at 
once  in  the  heirs  by  descent.     Peirce  v.  Graham,  85  Va.  227. 

§  96.  Who  May  be  an  Executor  or  Administrator  ? — At 
common  law  an  executor  gave  no  bond,  so  an  infant  of  seven- 
teen could  be  an  executor.  But  as  an  administrator  was  re- 
quired to  give  bond,  no  infant  could  be  administrator.  In 
Virginia  a  bond  is  required  of  both  executor  and  adminis- 


122  REAL    PROPERTY.  [Chap.  6 

trator,  so  neither  can  qualify  under  twenty-one.  1  Tuck. 
Com.  B'k  2,  p.  411,  n.  (b).  In  Virginia  the  marriage  of  a 
woman  who  was  a  personal  representative  does  not  now  oper- 
ate ipso  facto  as  an  extinguishment  of  her  authority;  but  the 
court  in  which  she  qualified  shall  revoke  her  powers  on  the 
motion  of  any  surety  on  her  bond;  and  may  do  so  on  motion 
of  any  person  interested,  or  when  it  shall  seem  proper  to  the 
court.     Acts  1891-'92,  p.  333,  ch.  208.1 

§  97.  Who  is  an  Executor  de  son  Tort  ? — One  who  becomes 
liable  as  if  he  were  executor,  by  reason  of  his  "intermeddling 
with  the  goods  of  the  decedent,"  and  so  is  called  an  executor 
of  his  own  wrong.  He  is  an  executor  de  facto,  though  not  de 
jure.     Code  of  Va.,  §  2656;  2  Bl.  Com.  (507). 

§  98.  Temporary  Grant  of  Administration. — See  2  Bl. 
Com.   (503).     In  Virginia  the  court  appoints  a  curator  of 

CORPORATION    AS    EXECUTOR   OB   ADMINISTRATOR. — By    Acts    1897- 

'98,  p.  238,  ch.  215,  the  Richmond  Trust  and  Safe  Deposit  Com- 
pany is  incorporated,  and  by  §  6  the  said  company  is  "authorized 
and  empowered  to  accept  and  execute,  as  fully  as  a  natural  per- 
son, trusts  of  any  and  every  description  which  may  be  committed 
or  transferred  to  it  by  any  person  or  persons  whomsoever,  bodies 
corporate  or  public,  upon  such  terms  as  may  be  agreed  upon  by 
and  between  the  said  company  and  said  person,  natural  or  corpo- 
rate, or  by  any  court  in  the  State  of  Virginia,  or  by  the  courts  of 
the  United  States,  or  of  any  of  the  States  or  territories  thereof, 
or  of  the  District  of  Columbia,  or  by  last  will  and  testament  of 
any  natural  person;  and  in  all  cases  when  application  shall  be 
made  to  any  court  of  this  State  for  the  appointment  of  any  re- 
ceiver, trustee,  assignee,  administrator,  executor,  guardian  or  com- 
mittee of  a  lunatic,  it  shall  and  may  be  lawful  for  such  court  to 
appoint  the  said  company  such  receiver,  trustee,  assignee,  admin- 
istrator, executor  or  guardian  or  committee  of  a  lunatic;  and  the 
accounts  of  said  company  as  such  receiver,  trustee,  assignee,  ad- 
ministrator, executor,  guardian  or  committee,  shall  be  regularly 
settled  before  the  court  making  such  appointment,"  etc.  For 
further  provisions,  see  the  charter.  And  by  Acts  1897-'98,  p.  354, 
ch.  316,  similar  powers  are  conferred  upon  the  Norfolk  Trust  and 
Safe  Deposit  Company,  which  is  constituted  a  body  corporate  and 
politic. 


§§  95-101]  DEVISES.  123 

the  estate  of  the  deceased  during  a  contest  about  his  will 
(pendente  lite),  or  during  the  infancy  (durante  minore 
cetate)  or  during  the  absence  (durante  absentia)  of  an  execu- 
tor, or  until  administration  of  the  estate  be  granted;  taking 
from  him  a  bond,  in  a  reasonable  penalty.  The  curator  has, 
while  the  office  continues,  the  general  powers  of  an  executor. 
Code  of  Va.  §  2534. 

§  99.  Is  the  Executor  of  A's  Executor  Entitled  to  Act  as 
the  Executor  of  A? — Yes,  at  common  law.  2  Bl.  Com.  (506). 
No,  in  Virginia :  "The  executor  of  an  executor  shall  have  no 
authority,  as  such,  to  administer  the  estate  of  the  first  testa- 
tor ;  but  on  the  death  of  the  sole  surviving  executor  of  any  last 
will,  administration  of  the  estate  of  the  first  testator  not  al- 
ready administered  may  be  granted,  with  the  will  annexed, 
to  such  person  as  the  court  shall  think  fit  to  appoint."  Code 
of  Va.  §  2643.  Such  an  administrator  would  be  described  as 
an  administrator  de  bonis  non  (d.  b.  n.)  cum  testamento  an- 
nexo  (c.  t.  a.) ;  i  .e.,  administrator  of  the  goods  not  already 
administered,  with  the  will  annexed  for  his  guidance.  An 
administrator  de  bonis  non  must  always  be  appointed  in  case 
the  first  administrator  (or  executor)  did  not  complete  the  ad- 
ministration, and,  if  there  be  a  will,  he  is  further  described  as 
an  administrator  de  bonis  non,  with  the  will  annexed. 

§  100.    Powers  of  the  Executor  Before  he  Proves  the  Will. 

— See  2  Bl.  Com.  (507).  These  powers  are  restricted  in  Vir- 
ginia, because  the  executor  must  give  bond.  Code  of  Va. 
§  2636,  enacts :  "A  person  appointed  by  will  executor  thereof 
shall  not  have  the  powers  of  an  executor  until  he  qualifies  as 
such  by  taking  an  oath,  and  giving  bond,  etc.,  except  that  he 
may  provide  for  the  burial  of  the  testator,  paying  reasonable 
funeral  expenses,  and  may  preserve  the  estate  from  waste." 

§  101.  When  the  Will  Appoints  no  Executor,  Who  is 
Entitled  to  Qualify  as  Administrator? — See  2  Bl.  Com.  (50! ). 
In  Virginia,  by  Code,  §  2639 :  "Administration  shall  be 
granted  to  the  distributees  who  apply  therefor,  preferring 


124  REAL    PROPERTY.  [Chap.  6 

first  the  husband  or  wife,  and  then  to  such  of  the  others  en- 
titled to  distribution  as  the  court  shall  see  fit.  If  no  dis- 
tributee apply  for  the  administration  within  thirty  days  from 
the  death  of  the  intestate,  the  court  may  grant  administration 
to  one  or  more  of  his  creditors,  or  to  any  other  person."  And 
if  two  months  elapse  without  there  being  an  executor  or  ad- 
ministrator (except  during  a  contest  over  the  decedent's  will, 
or  during  the  infancy,  or  absence  of  an  executor)  the  court 
shall,  on  the  motion  of  any  person,  commit  administration  to 
the  sheriff.   Code  of  Va.  §  2645. 

§  102.  Probate  of  Wills.— See  2  Bl.  Com.  (508).  Code  of 
Va.  §  2533,  et  seq.,  provides  for  the  probate  of  wills  of  realty 
as  well  as  of  personalty.  But  see  amendment  of  §  2533,  by 
Acts  1887-'88,  p.  16,  c.  15,  and  also  by  Acts  1893-'94,  p.  898, 
c.  781.  As  to  recording  a  will,  see  Code  of  Va.  §  2547, 
amended  by  acts  1897-98,  p.  492,  c.  458,  declaring  that  "it 
shall  be  the  duty  of  the  personal  representative  of  the  tes- 
tator to  cause  a  duly  certified  copy  of  any  will,  or  of  any  au- 
thenticated copy,  so  admitted  to  record,  to  be  recorded  in 
the  clerk's  office  of  the  county  or  corporation  court  of  each 
county  or  corporation  wherein  there  is  any  real  estate  whereof 
the  testator  died  seised  and  possessed."  For  the  effect  of  ad- 
mission to  probate,  see  Connolly  v.  Connolly,  32  Grat.  657; 
Norvell  v.  Lessueur,  33  Id.  222.  For  oath  of  executor,  see 
Code  of  Va.  §  2638.  For  oath  of  administrator,  see  §  2640. 
For  the  bond  of  an  executor  or  administrator,  see  §  2641. 
But  the  will  may  exempt  the  executor  from  furnishing  secur- 
ity.   §  2642.1 

1  Purchaser  from  an  Heir  at  Law. — By  Acts  of  Virginia,  1891- 
'92,  p.  239,  c.  148,  it  is  declared  that  "the  title  of  a  bona  fide  pur- 
chaser without  notice  and  for  valuable  consideration,  from  the 
heir-at-law  of  a  person  who  died  having  title  to  any  real  estate  of 
inheritance  in  this  commonwealth,  shall  not  be  affected  by  a  de- 
vise of  such  real  estate  made  by  the  decedent,  unless  within 
seven  years  after  the  testator's  death,  the  will  devising  the  same, 
or  if  such  will  has  been  proved  without  this  State,  an  authenti- 
cated copy  thereof,  and  the  certificate  of  probate,  shall  be  offered 


§§  101-106]  DEVISES.  125 

§  103.    Appraisement  of  Personal  Estate. — See  Code  of  Va. 

§  2647.  But  the  will  may  direct  that  no  appraisement  shall 
be  made. 

§  104.  Inventory  of  the  Personal  Estate. — See  Code  of 
Va.  §  2673.  For  account  of  sales,  see  §  2674;  for  record  of 
inventory  of  sales,  see  §  2675;  for  accounts  of  personal  repre- 
sentatives, see  §  2678,  et  seq.;  for  compensation  of  personal 
representatives  (5  per  cent,  on  receipts),  see  4  Min.  Ins. 
1234-'3o. 

§  105.  Powers  of  Personal  Representatives. — "It  shall  be 
the  duty  of  every  personal  representative  to  administer  well 
and  truly  the  whole  personal  estate  of  his  decedent."  He  has 
full  power  to  sell  the  personalty  in  order  to  convert  it  into 
money  to  pay  the  debts  clue  by  the  estate,  and  full  power  to 
sue  for  and  collect  all  debts  due  to  the  estate.  Code  of  Va. 
§  2648.  And  the  executor  may  be  authorized  by  the  will  to 
sell  real  estate  for  the  payment  of  debts.  See  Code  of  Va. 
§  2663;  also  §  2666. 

§  106.  Liability  of  Personal  Representatives. — Unless  he 
promises  in  writing  to  pay  out  of  his  own  estate,  he  is  only 
liable  to  pay  the  decedent's  debts  out  of  the  decedent's  assets. 
A  judgment  against  a  personal  representative  is  de  donis  tes- 
iatoris,  not  de  bonis  propriis.  But  if  by  his  negligence,  or  im- 
proper conduct,  he  lose  any  debt  or  other  money,  he  is  per- 
sonally liable  for  the  principal  and  interest.  And  if  a  personal 
representative  pay  any  debt  the  recovery  of  which  could  be 
prevented  by  reason  of  illegality  of  consideration  (e.  g., 
usury),  lapse  of  time   (statute  of  limitations)   or  otherwise, 

for  probate  before  the  court  having  jurisdiction  for  that  purpose, 
and  shall  afterwards  be  admitted  to  probate  and  record  in  the 
proper  court  as  a  will  of  real  estate.  Provided,  that  if  any  dev- 
isee under  such  will  is  at  the  time  of  the  testator's  death  an 
infant,  or  insane,  the  limitation  created  by  this  act  shall  not  af- 
fect such  infant  or  insane  person  until  after  the  expiration  of  two 
years  from  the  removal  of  his  or  her  disability." 


126  REAL    PROPERTY.  [Chap.  6 

knowing  the  facts  by  which  the  same  could  be  prevented,  no 
credit  shall  be  allowed  him  therefor.  Code  Va.,  §  2676.  But 
in  Fauber  v.  Gentry,  89  Va.  312,  it  is  held  that  an  adminis- 
trator is  chargeable  with  sums  actually  collected,  and  not  with 
estimates  made  by  him  as  to  what  might  be  collected  on  claims 
due  the  estate. 

§  107.  Order  in  Which,  on  Deficiency  of  Assets,  the  Debts, 
of  the  Decedent  are  to  be  Paid. — See  Code  of  Va.,  §  2660,  as 
amended  by  Acts  1895-96,  p.  288,  chap.  253.  "When  the 
assets  of  the  decedent  in  the  hands  of  his  personal  representa- 
tive, after  the  payment  of  funeral  expenses  and  charges  of 
administration,  are  not  sufficient  for  the  satisfaction  of  all 
demands  against  him,  they  shall  be  applied : 

"First.  To  claims  of  physicians  not  exceeding  fifty  dollars 
for  services  rendered  during  the  last  illness  of  the  decedent, 
and  accounts  of  druggists  not  exceeding  the  same  amount  for 
articles  furnished  during  the  same  period. 

"Second.  To  debts  due  the  United  States  and  this  State. 

"Third.  To  taxes  and  levies  assessed  upon  the  decedent 
previous  to  his  death. 

"Fourth.  To  debts  due  as  trustee  for  persons  under  dis- 
abilities, as  receiver  or  commissioner  under  decree  of  court 
of  this  State,  as  personal  representative,  guardian  or  com- 
mittee, where  the  qualification  was  in  this  State,  in  which 
class  of  debts  shall  be  included  a  debt  for  money  received  by 
a  husband  acting  as  such  fiduciary  in  right  of  his  wife. 

"Fifth.  To  all  other  demands,  except  those  in  the  next 
class;  and 

"Sixth.   To  voluntary  obligations,"  [i.  c.,  bonds.] 

No  payment  shall  be  made  to  creditors  of  any  one  class 
until  the  preceding  class  or  classes  shall  be  fully  paid;  and 
when  the  assets  are  not  sufficient  to  pay  all  the  creditors  of 
any  class,  the  creditors  of  such  class  shall  be  paid  ratably. 
Code  Va.,  §  2661.  And  by  §  2665  all  real  estate  of  a  decedent 
is  assets  for  the  payment  of  his  debts ;  and  shall  be  applied  to 
their  payment  in  the  same  order  as  personalty,  except  when 


§§  106-108]  DEVISES.  127 

such  real  estate  is  made  equitable  assets  by  a  will  which 
charges  it  with  the  payment  of  the  debts,  or  devises  it  subject 
to  their  payment.  See  Bisph.  Eq.  §  532 ;  Deering  v.  Kerfoot, 
89  Va.  491. 

§  108.  Order  in  Which,  on  Sufficiency  of  Assets,  the  De- 
cedent's Property  is  to  be  Applied  to  the  Payment  of  his 
Debts. — For  the  English  order,  see  Bispham's  Equity,  §  346. 
The  order  in  Virginia  is  as  follows : 

First.  Personalty  not  bequeathed,  nor  expressly  nor  im- 
pliedly exempted.  Scott  v.  Ashlin,  86  Va.  581 ;  New  v.  Bass, 
92  Va.  383. 

Second.   Eealty  devised  for  payment  of  debts. 

Third.  Eealty  not  devised,  but  allowed  to  descend  to  the 
heir  at  law. 

Fourth.  General  pecuniary  legacies  (i.  e.,  legacies  of  money, 
as  $1,000  to  A"). 

Fifth.  Personalty  specifically  bequeathed,  as,  c.  g.,  "my 
gold  watch  to  A." 

Sixth.  Eealty  devised,  as,  e.  g.,  "Blackacre  to  A  and  his 
heirs  forever."  Alexander  v.  Byrd,  85  Va.  690. 

In  the  above  table,  if  No.  1  will  pay  all  debts,  nothing 
else  must  be  touched,  as  No.  1  is  first  liable.  So  if  Nos.  1,  2 
and  3  will  pay  all  debts,  Nos.  4,  5  and  6  are  exempt.  And  No. 
6,  land  devised,  must  never  be  touched  until  all  other  prop- 
erty is  exhausted.  See  Elliott  v.  Carter,  9  Grat.  549;  Murphy 
v.  Carter,  23  Grat.  477;  Edmunds  v.  Scott,  78  Va.  720.  For 
the  order  of  liability  of  land  devised  to  A,  but  subject  to  a 
charge  for  the  payment  of  debts,  see  Bisph.  Eq.  346.  For  the 
order  of  liability  of  mortgaged  land,  descended  to  the  heir,  or 
devised  to  another,  see  Adams'  Eq.  (263),  (264)  ;  Bisph.  Eq., 
§§  346,  348 ;  Carter  v.  Barnardiston,  1  P.  Wms.  505  (cited  in 
Elliott  v.  Carter,  9  Grat.  541,  551),  Daniel  v.  Leitch,  13  Grat. 
155.  As  to  property  over  which  the  testator  has  exercised  a 
general  power  of  appointment  in  favor  of  a  volunteer,  see 
Freeman  v.  Butters  (Va.),  26  S.  E.  845. 


128  REAL    PROPERTY.  [Chap.  6 

§  109.  Effect  of  a  Creditor's  Appointing  his  Debtor  his 
Executor. — At  common  law  it  was  a  discharge  of  the  debt. 
2  Bl.  Com.  (512).  Secus,  now  in  Virginia.  "The  appointment 
of  a  debtor  as  executor  shall  not  extinguish  the  debt."  Code 
of  Va.,  §  2648. 

§  110.  Eight  of  Eetainer  by  Executor,  or  Administrator 
among  Debts  of  Equal  Degree. — See  2  Bl.  Com.  (512).  There 
is  no  such  right  in  Virginia,  but  the  personal  representative 
must  take  his  proportion  like  any  other  creditor.   Code,  §  2661. 

§  111.  The  Different  Sorts  of  Legacies. — There  are  three 
kinds,  viz.,  general,  specific  and  demonstrative.  See  8  Am.  St. 
R.,  720-726,  note.1 

1  Demonstrative  Legacies. — In  2  Redneld  on  Wills,  462,  it  is 
said:  "There  is  an  intermediate  class  of  legacies,  between  gen- 
eral and  specific  legacies,  where  a  certain  amount  of  money  is 
given  to  come  out  of  a  particular  fund.  These  are  sometimes 
called,  after  the  denomination  in  the  civil  law,  demonstrative 
legacies.  This  class  of  legacies  is  not  liable  to  be  adeemed,  and 
so  [to]  fail  by  the  fund  being  called  in  or  changed,  but  is  still 
payable  out  of  the  general  assets.  In  this  respect  it  partakes  more 
of  the  nature  of  a  general  legacy.  But  in  another  particular,  in 
that  it  is  not  liable  to  abatement,  when  the  funds  are  insufficient 
to  meet  all  the  legacies,  it  partakes  more  of  the  nature  of  a  spe- 
cific legacy."  And  in  3  Pom.  Eq.,  §  1133:  "Demonstrative  legacies 
are  a  peculiar  kind,  which  partake  of  the  nature  of  both  specific 
and  general  legacies,  and  combine  the  advantages  of  both.  .  .  . 
Their  effect  is  peculiar.  Although  made  primarily  payable  out  of 
a  particular  fund,  these  legacies  do  not  fail — are  not  adeemed — 
because  such  fund  may  not  exist  as  a  part  of  the  testator's  es- 
tate at  his  death,  but  they  are  then  payable  out  of  his  general 
assets  like  general  legacies.  On  the  other  hand,  if  such  particu- 
lar fund  is  in  existence  as  a  part  of  the  testator's  estate  at  his 
death,  they  are  not  liable  to  abatement  in  common  with  general 
legacies,  but  are  entitled  to  payment  under  the  circumstances  in 
exactly  the  same  manner  as  true  specific  legacies."  See  to  same 
effect,  8  Am.  St.  R.,  724,  note.  And  see  2  Redfield  on  Wills  (467), 
where  cases  are  cited  showing  that  a  demonstrative  legacy  is 
liable  to  abate  with  the  general  legacies  when  it  becomes  a  gen- 
eral legacy  by  the  failure  of  the  fund  out  of  which  it  is  payable; 


§§  109-111]  DEVISES.  129 

(a)  A  general  legacy  (called  also  pecuniary)  is  a  gift  of 
a  certain  sum  of  money  to  be  paid  out  of  the  assets  of  the 
testator's  estate  generally,  no  fund  being  designated  as  the 
means  of  payment.  For  example,  "I  give  and  bequeath  to  A 
the  sum  of  $1,000."  Unless  such  legacies  are,  expressly  or 
impliedly,  charged  on  real  estate,  they  are  payable  out  of  the 
personalty  only.  Couch  v.  Davis,  23  Grat.,  62,  94;  Allen  v. 
Patton,  83  Va.,  255 ;  Lee  v.  Smith,  8-i  Va.,  289 ;  Lee  v.  Lee, 

and  that  a  demonstrative  legacy  must  also  abate  with  general 
legacies  as  to  the  balance  not  paid  by  the  particular  fund. 

As  to  what  are  demonstrative  legacies,  Pomeroy  (3  Eq.  Jur., 
§  1133,  n.  2)  gives  the  following  examples:  "Gifts  of  specified 
sums  or  amounts  payable  out  of  a  mass  of  property,  real  or  per- 
sonal; gifts  of  a  particular  sum  out  of  or  from  a  specified  amount 
of  stock,  or  out  of,  or  a  share  of,  the  capital  employed  in  a  cer- 
tain business;  a  bequest  of  money  now  vested  in  particular  bonds 
or  securities,  or  of  a  sum  to  be  paid  by  and  out  of  moneys  due 
to  the  testator  on  a  bond  or  other  security."  See  Dunford  v.  Jack- 
son (Va.),  22  S.  E.,  853,  and  Dunn  v.  Renick  (W.  Va.),  22  S.  E., 
66,  where  the  demonstrative  legacies  were  payable  out  of  the  pro- 
ceeds of  lands  ordered  to  be  sold  by  the  testator. 

As  to  contingent  legacies,  see  full  discussion  in  10  Am.  St.  R. 
471-479,  note.  Also  see  Effinger  v.  Hall,  81  Va.  94;  Sellers  v.  Reed, 
88  Va.  377;  Jones  v.  Habersham,  107  U.  S.  174. 

As  to  interest  on  legacies,  it  is  the  rule  that  a  general  legacy 
begins  to  bear  interest  one  year  after  the  death  of  the  testator. 
This  is  said  to  be  because  a  general  legacy  is  payable  one  year 
from  the  testator's  death.  See  13  Am.  &  Eng.  Ency.  Law  (1st  ed.), 
167,  note  1,  where  it  is  said:  "The  reason  of  the  rule  is,  that 
interest  is  payable  from  the  time  a  legacy  ought  to  be  paid  until 
the  date  of  payment,  as  compensation  for  the  detention.  A  gen- 
eral legacy,  as  already  pointed  out,  is  payable  one  year  after  the 
testator's  death;  hence,  if  not  paid,  interest  runs  from  that 
period.  Hence,  it  would  seem,  that  in  States  in  which  the  legacies 
are  payable  one  year  from  the  date  of  the  executor's  letters,  and 
not  from  the  testator's  death,  the  interest  should  begin  to  run 
from  that  time  [i.  e.,  from  the  date  of  the  letters].  In  some 
States  it  has  been  so  held,  but  in  others,  the  statutes  changing 
the  time  of  payment  to  one  year  after  the  grant  of  letters  are 
held  to  have  no  effect  upon  the  payment  of  interest."  See  cases 
cited. 


130  REAL    PROPERTY.  [Chap.  6 

88  Va.,  805;  Smith  v.  Mason,  89  Va.,  713;  Bird  v.  Stout  (W. 
Va.)  20  S.  E.,  852.  But  if  the  personal  property  is  exhausted 
in  the  payment  of  the  debts,  then  such  legacies,  by  the  doctrine 
of  marshalling,  are  payable  out  of  land  devised  to  pay  debts, 
and  land  descended  to  the  heirs.  The  advantage  of  a  general 
legacy  is  that  it  is  not  liable  to  be  lost  by  ademption  (i.  e., 
to  be  sold  by  the  testator,  or  lost  or  destroyed  in  his  lifetime), 
as  a  specific  legacy  is;  its  disadvantage  is  that  it  is  taken  to 
pay  the  debts  before  the  other  legacies  are  touched. 

(6).  A  specific  legacy  is  a  bequest  of  a  particular  thing, 
as  a  horse,  a  piece  of  plate,  money  in  a  certain  purse,  etc.  Its 
advantage  is  that  it  is  not  liable  for  debts  until  general  pe- 
cuniary legacies  are  exhausted;  its  disadvantage  is  that  it  is 
liable  to  ademption,  as  explained  above. 

(c).  A  demonstrative  legacy  is  a  legacy  of  quantity,  with 
a  particular  fund  pointed  out  for  its  satisfaction;  as,  "I  be- 
queath to  A  $1,000  to  be  paid  out  of  the  proceeds  of  my  stock 
in  the  bank  of  Rockbridge."    A  demonstrative  legacy  so  far 

By  Code  of  Va.,  §  2706,  it  is  declared  that  "a  personal  represen- 
tative shall  not  be  compelled  to  pay  any  legacy  given  by  the  will, 
or  make  distribution  of  the  estate  of  his  decedent,  until  after  a 
year  from  the  date  of  the  order  conferring  authority  on  the  first 
executor  or  administrator  of  such  decedent."  And  in  Moorman 
v.  Crockett,  90  Va.  185,  it  is  stated  in  the  head-note  that  under 
this  statute  a  legacy  in  Virginia  does  not  bear  interest  until  one 
year  after  the  executor's  qualification.  But  it  seems  that  this 
question  did  not  arise  in  the  case,  the  point  decided  being  that 
a  legacy  does  not  bear  interest  from  the  death  of  the  testator, 
except  in  certain  exceptional  cases,  and  the  attention  of  the  court, 
as  far  as  appears,  was  not  directed  to  the  effect  of  the  statute  as 
changing  the  running  of  interest  from  one  year  after  the  testa- 
tor's death  to  one  year  after  the  executor's  qualification.  The 
question  may  be  considered,  therefore,  still  open;  and  it  is  be- 
lieved to  be  the  better  opinion,  that  the  statute  does  not  change 
the  old  rule,  and  that  a  legacy  in  Virginia  bears  interest  after  one 
year  from  the  death  of  the  testator. 

For  the  exceptional  cases  in  which  a  legacy  begins  to  bear  in- 
terest immediately  on  the  testator's  death,  see  2  Bl.  Com.  (Shars- 
wood's  ed.)    (514),  n.  38;  13  Am.  &  Eng.  Ency.  Law,  170. 


§  111]  DEVISES.  131 

resembles  a  general  one  as  not  to  be  liable  to  ademption;  i.  e., 
if  the  fund  for  payment  fails,  the  legacy  is  not  lost,  but  the 
legatee  will  be  permitted  to  receive  the  amount  out  of  the 
general  assets.    On  the  other  hand,  it  so  far  resembles  a  spe- 
cific legacy  that  it  is  not  liable,  if  the  particular  fund  is  in 
existence,  to  abate  with  the  general  legacies  on  deficiency  of 
assets.   So  it  has  the  double  advantage  of  escaping  both  ademp- 
tion and  abatement.     See  Morris  v.  Garland,  78  Va.,  215 
Brown  v.  Brown,  79  Va.,  648 ;  Stolces  v.  Mitchell,  80  Va.,  149 
Effinger  v.  Hall,  81  Va.,  94 ;  Hood  v.  Haden,  82  Va.,  588 
Lee  v.  Smith,  84  Va.,  289;  Dunford  v.  Jackson  (Va.),  22 
S.  E.,  853.   See  Dunn  v.  TLenick  (W.  Va.),  22  S.  E.,  66. 


CHAPTER  VII. 

CONVEYANCES. 

I. — Modes  of  Conveyance. 

§  112.  Conveyances  at  Common  Law. — Under  the  rigid 
rules  of  the  common  law,  based  on  feudal  principles,  the 
transfer  of  the  legal  title  to  land  could  only  be  accomplished 
by  livery  of  seisin;  i.  e.,  the  delivery  of  possession  of  the  land 
by  feoffor  to  feoffee.  A  deed  of  feoffment  was  unnecessary  as 
the  land  lay  in  livery,  not  in  grant.  But  livery  was  required 
on  conveyances  of  freehold  estates  only,  as  those  less  than  free- 
hold (terms  of  years,  chattels-real)  did  not  involve  the  seisin 
{feudal  possession).  Hence  a  lease  for  years  required  no  liv- 
ery of  seisin,  but  was  completed  on  the  lessee's  entry,  as  we 
have  seen.  2  Bl.  Com.  (104),  (144),  (310);  Wms.  E.  P. 
(17th  ed.),  174,  563. 

§  113.    Conveyances  Operating  Under  the  Statute  of  Uses. 

— These  are  three  in  number,  viz:  covenant  to  stand  seized; 
bargain  and  sale;  and  lease  and  release.  The  importance  of 
these  conveyances  during  the  period  which  elapsed  between 
the  Statute  of  Uses,  27  Hen.  VIII.,  c.  10,  and  the  statute  by 
which  lands  were  made  to  lie  in  grant  (1536-1845),  can 
scarcely  be  over-estimated.  They  may  still  be  employed,  and 
their  operation  must  be  well  understood.  See  §  115,  infra; 
2  Bl.  Com.  (338). 

§  114.  The  Statute  of  Uses. — This  famous  statute  did  not 
forbid  uses  to  be  declared  or  raised  (i.  e.,  created  by  implica- 
tion when  not  expressly  declared),  nor  pronounce  them  il- 
legal; indeed,  its  language  shows  clearly  that  it  contemplated 
that  uses  would  continue  to  be  declared  or  raised.   See  for  the 

132 


§§  112-114]  CONVEYANCES.  133 

full  text  of  the  statute,  Tied.  E.  P.,  p.  363,  uote  1.  But  the 
great  object  of  the  statute  was  to  abolish  the  jurisdiction  of 
the  Court  of  Chancery  over  landed  estates,  and  to  restore  the 
jurisdiction  of  the  common  law  tribunals.  This  jurisdiction 
chancery  had  obtained  by  its  recognition  of  uses,  which  the 
common  law  ignored.  Hence,  it  was  determined  to  link,  by 
an  indissoluble  bond,  the  legal  title  to  the  use,  by  giving  to 
every  man  who  had  a  use  the  "lawful  seisin  and  possession." 
Chancery  had  enforced  uses  because  the  common  law  courts 
refused  to  recognize  them;  the  statute  made  them  legal  es- 
tates; and  by  giving  them  full  recognition  at  law,  sought  to 
take  from  the  court  of  chancery  all  ground  for  interference. 

The  statute  in  substance  enacts:  When  any  person  stands 
seised  of  land  to  the  use  of  another  person,  he  who  has  the  use 
(the  latter)  shall  be  deemed  in  lawful  seisin  and  possession 
of  the  land  for  the  same  estate  in  the  land  that  he  has  in  the 
use.  Whenever  the  statute  operates  on  a  use,  and  turns  it  into 
a  legal  title,  the  use  is  said  to  be  executed.  But  in  the  con- 
struction of  the  statute,  the  courts  held  that  a  use  was  not 
executed  in  these  three  cases:  (a)  When  the  use  was  a  use 
on  a  use;  i.  e.,  a  use  after  a  prior  use.  Tyrrell's  case,  Dyer, 
155  a;  (b)  When  no  one  stood  seized  to  the  use;  and  (c) 
When  the  use  was  active.  For  explanation,  see  2  Bl.  Com. 
(336).  As  to  uses  for  terms  of  years,  there  is  danger  of  mis- 
apprehension. The  statute  says  that  he  who  has  the  use  (cestui 
que  use),  shall  be  deemed  in  lawful  seisin  and  possession,  pro- 
vided some  person  (feoffee  to  use)  stands  seized  to  the  use; 
and  no  one  can  stand  seized  of  a  term  of  years.  Hence,  if  A 
conveys  a  term  of  one  hundred  years  to  B  to  the  use  of  C, 
the  use  is  not  executed ;  for  B  is  not  seised  to  the  use.  But  if 
A,  seised  in  fee-simple,  conveys  his  land  to  B  and  his  heirs  to 
the  use  of  C  for  one  hundred  years,  C's  use  is  executed,  for 
B  has  the  seisin  and  is  seised  to  C's  use,  though  the  use  itself 
is  a  chattel  interest.  In  other  words,  it  is  not  necessary  that 
the  use  be  freehold;  what  is  required  is  that  there  shall  be  a 
feoffee  to  use,  if  a  conveyance  is  made,  or  a  person  seised  to 
the  use,  as  when  the  owner  of  the  land  retains  it,  and  becomes 


134  REAL    PROPERTY.  [Chap.  7 

himself  seised  to  the  use  of  another  as  in  deeds  of  covenant  to 
stand  seised,  and  of  bargain  and  sale.  See  78  Am.  Dec.  406- 
410,  note. 

All  uses  not  executed  by  the  Statute  of  Uses,  and  thereby 
made  legal  estates,  are  enforced  in  chancery  as  equitable  es- 
tates, and  are  now  called  trusts.  And  though  the  use  was  not 
active,  and  though  there  was  a  feoffee  to  use,  yet  any  one  who 
desired  to  evade  the  statute,  and  to  create  a  use  it  would  not 
execute,  could  easily  do  so.  He  had  but  to  make  the  use  a 
second  use,  and  the  aim  was  accomplished;  for  a  use  on  a  use 
is  not  executed,  as  we  have  seen.  Thus,  suppose  A  wants  C  to 
hold  the  legal  title  for  use  of  D.  Then  he  would  convey  to  B 
and  his  heirs  to  the  use  of  C  and  his  heirs,  to  the  use  of  D  and 
his  heirs.  Or  it  can  be  done  thus :  A  conveys  unto  and  to  the 
use  of  C  and  his  heirs,  to  the  use  of  D  and  his  heirs.  Thus 
by  the  addition  of  "and  to  the  use  of,"  the  Statute  of  Uses 
is  made  inoperative.  Wins.  E.  P.  (17th  ed.),  207-'8. 

But  while  the  Statute  of  Uses  was  thus  evaded,  and  so 
failed  utterly  in  withdrawing  lands  from  the  jurisdiction  of 
chancery,  it  effected  other  results  of  the  utmost  importance. 
It  was  the  potent  instrument  to  unfetter  land  from  the  rigid 
rules  of  common  law  conveyancing;  and  it  gave  to  the  owner 
of  land  something  approaching  the  present  facility  of  trans- 
fer, and  complex  methods  of  alienation.  For  under  it  origi- 
nated three  deeds  of  conveyance,  covenant  to  stand  seised, 
bargain  and  sale,  and  lease  and  release,  whereby  the  legal  title 
to  freehold  estates  could  be  transferred  without  livery  of 
seisin  and  under  it  a  fee  can  be  mounted  on  a  fee,  and  a 
freehold  made  to  commence  in  futuro,  which  the  common  law 
forbids.   Ocheltree  v.  McClung,  7  W.  Va.  232. 

§  115.  Operation  of  Covenant  to  Stand  Seised,  Bargain 
and  Sale,  and  Lease  and  Release. 

(1).  Covenant  to  stand  seised.  A  man,  having  a  freehold 
estate  in  land,  executes  a  deed  whereby  he  covenants  to  stand 
seised  of  his  land,  at  once,  or  at  some  future  time,  to  the  use 
of  his  wife,  son,  etc.    Thus  a  use  is  created  in  favor  of  the 


§§114,115]  CONVEYANCES.  135 

covenantee  (wife,  son,  etc.),  who,  having  the  use,  is  deemed, 
by  the  Statute  of  Uses,  to  be  in  lawful  seisin  and  possession. 
Thus  the  legal  title  is  transferred.  But  the  consideration  must 
be  blood  or  marriage. 

(2).  Bargain  and  sale.  A  owns  Blackacre,  and  contracts 
to  sell  it  to  B,  and  B  pays  A  the  purchase  money  (bargain 
and  sale).  But  no  livery  is  made  to  B.  Then,  in  equity,  A 
stands  seised  of  Blackacre  to  B's  use,  and  B,  having  the  use, 
is,  by  the  Statute  of  Uses,  deemed  to  be  in  lawful  seisin  and 
possession.  So  the  legal  title  was  transferred  from  A  to  B 
without  livery,  and  without  writing.  This  was  considered  so 
much  against  public  policy,  as  preventing  the  necessary  no- 
toriety in  the  conveyance  of  the  land,  that  another  statute 
(called  the  Statute  of  Enrollments)  was  passed  soon  after  the 
Statute  of  Uses  (in  the  same  year)  which  declared  that  a  bar- 
gain and  sale  of  any  estate  of  freehold  or  of  inheritance  in 
land  should  be  by  deed,  which  deed  should  be  recorded,  the 
record  being  considered  to  give  publicity,  as  a  substitute  for 
the  notoriety  of  livery  of  seisin.    See  2  Bl.  Com.  (338). 

(3).  Lease  and  release.  The  English  people  seem  never  to 
have  fancied  the  registration  of  deeds,  and  deeds  of  bargain 
and  sale  of  freeholds  would  not  operate  without  it,  after  the 
Statute  of  Enrollments.  But  suppose  it  was  wished  to  avoid 
livery  of  seisin,  and  so  to  escape  publicity  in  the  conveyance 
of  land.  This  purpose  was  accomplished  by  an  astute  lawyer 
who  invented  conveyances  by  lease  and  release.  At  common 
law,  one  who  had  leased  land  to  another  for  a  term,  say  one 
year,  could  release  the  reversion  in  fee  to  the  lessee  by  a  deed 
of  release,  and  thus  convey  to  the  lessee  the  entire  fee-simple 
without  livery,  provided  the  lessee  first  made  entry  upon  the 
land.  Without  entry  the  release  was  void.  But  the  entry  gave 
publicity;  and  the  problem  was,  under  the  Statute  of  Uses, 
to  make  a  lease  and  release  work  without  actual  entry.  Noth- 
ing was  easier  when  once  thought  of.  A  has  land  which  he 
desires  to  convey  in  fee-simple  to  B  by  a  secret  conveyance. 
He  makes  a  lease  to  B  for  one  year  for  a  valuable  considera- 


136  REAL    PROPERTY.  [Chap.  7 

tion.  This  is  a  bargain  and  sale  of  the  land  to  B  for  one  year ; 
and,  therefore,  as  explained  tbove,  A  stands  seised  of  his  land 
to  the  use  of  B  for  one  year.  Then,  by  the  Statute  of  Uses, 
B,  having  the  use,  is  deemed  to  be  in  lawful  possession.  Now, 
by  the  statute,  B  has  possession  without  entry;  and  so  a  re- 
lease can  at  once  be  made  to  him  by  A  of  his  reversion  in  fee- 
simple,  which  gives  B  the  entire  interest.  The  release  is  sim- 
ply by  a  deed  of  grant,  as  a  reversion  after  a  term  of  years  is 
considered  incorporeal,  and  so  lies  in  grant,  and  does  not 
require  livery.  So,  by  the  double  process  of  lease  and  release, 
both  entry  on  the  land  and  livery  of  seisin  are  avoided.  And 
as  the  lease  by  bargain  and  sale  was  of  a  term  only,  and  not 
of  a  freehold,  it  did  not  come  under  the  language  of  the  Stat- 
ute of  Enrollments,  and  hence  lease  and  release  was  a  secret 
conveyance.   Wms.  E.  P.  236-'37. 

§  116.    The  Statute  of  TJ&es  in  the  United  States.— The 

statute  is  in  force  in  most  of  the  States.  See  Bisph.  Eq.,  §  55. 
But  in  Virginia  there  is  no  general  statute  of  uses.  Code  of 
Va.,  §  2426  enacts :  "By  deed  of  bargain  and  sale,  or  by  deeds 
of  lease  and  release,  or  by  covenant  to  stand  seised  to  the  use, 
or  deed  operating  by  way  of  covenant  to  stand  seised  to  the 
use,  the  possession  of  the  bargainor,  releasor,  or  covenantor, 
shall  be  deemed  transferred  to  the  bargainee,  releasee,  or  per- 
son entitled  to  the  use,  for  the  estate  or  interest  which  such 
person  has  in  the  use,  as  perfectly  as  if  the  bargainee,  releasee 
or  person  entitled  to  the  use  had  been  enfeoffed  with  livery  of 
seisin  of  the  land  intended  to  be  conveyed  by  such  deed  or 
covenant."  And  by  §  2427,  a  release  is  made  effectual  with- 
out the  execution  of  a  lease.  It  will  be  seen  that  this  statute 
merely  gives  effect  to  the  three  deeds  of  bargain  and  sale,  lease 
and  release,  and  covenant  to  stand  seised,  and  does  not,  like 
the  English  statute,  declare  that  'whenever  any  person  stands 
seised  to  the  use  of  another,  the  use  shall  be  executed. 

Hence,  in  Virginia,  if  A  grants  land  to  B  and  his  heirs, 
to  the  use  of  C  and  his  heirs,  C's  use  is  not  executed  (though 
a  first  use),  and  is  enforced  in  equity  as  a  trust.    Bass  v. 


§§  115-117]  CONVEYANCES.  137 

Scott,  2  Leigh,  356;  Jones  v.  Tatum,  19  Grat.  720,  733;  2 
Min.  Ins.  (4th  ed.)  217,  824;  3  Va.  Law  Keg.  732.  It  was 
perhaps  thought  idle  to  follow  the  English  statute,  whose  pur- 
pose was  so  easily  evaded  hy  the  device  of  a  second  use,  or, 
more  probably,  it  was  not  thought  desirable  to  abolish  equi- 
table estates  in  lands,  by  turning  all  uses  into  legal  titles. 
And  so  the  Legislature  contented  itself  with  reaping  the  sub- 
stantial benefits  of  the  Statute  of  Uses  in  giving  effect  to  the 
three  deeds  operating  under  it,  thus  dispensing  with  livery 
of  seisin.  As  to  mounting  a  fee  upon  a  fee,  and  commencing 
a  freehold  in  futuro,  these  are  provided  for  in  Virginia  by 
special  statutes,  without  reference  to  uses.    See  C.  V.,  §  2418. 

§  117.  The  Statutory  Deed  of  Grant. — At  common  law  a 
deed  of  grant  could  be  employed  to  transfer  incorporeal  realty 
only,  which  was  said,  therefore,  to  lie  in  grant.  2  Bl.  Com. 
(317).  But  by  8  and  9  Vict.,  eh.  106,  §  2  (taking  effect 
October  1,  1845),  it  was  declared  that  "all  corporeal  tene- 
ments and  hereditaments,  as  regards  the  conveyance  of  the 
immediate  freehold  thereof,  shall  be  deemed  to  lie  in  grant, 
as  well  as  in  livery."  And  the  Virginia  statute,  taking  effect 
July  1,  1850,  enacts  as  follows:  "All  real  estate  shall,  as  re- 
gards the  conveyance  of  the  immediate  freehold  thereof,  be 
deemed  to  lie  in  grant  as  well  as  in  livery,"  §  2417.  The 
above  statutes  make  a  deed  of  grant  as  effective  as  if  livery 
were  made.  But  livery  without  deed  is  no  longer  sufficient  in 
Virginia.  For  by  Code  §  2413  it  is  declared:  "ISTo  estate  of 
inheritance  or  freehold,  or  for  a  term  of  more  than  five  years 
in  lands,  shall  be  conveyed  unless  by  deed  or  will."  Thus  in 
Virginia  livery  is  dispensed  with,  and  a  deed  is  made  neces- 
sary to  convey  a  freehold  for  a  term  of  more  than  five  years. 
So  lands  now  lie  in  grant,  i.  e.,  pass  by  deed  sealed  and  de- 
livered.  And  this  is  the  culmination  of  conveyancing.1 

1  Requisites  for  a  Deed. — As  to  what  amounts  to  a  seal  in  Vir- 
ginia, see  1  Va.  Law  Reg.  622;  3  Id.  279;  Bradley  Salt  Co.  v.  Nor- 
folk, etc.,  Co.,  3  Id.  722,  and  note,  p.  728.  As  to  whether  a  deed 
must  be  signed  as  well  as  sealed,  see  Wms.  R.  P.  (17th  ed.),  184- 


138  REAL    PROPERTY.  [Chap.  7 

§  118.  Ut  res  magis  valeat  quam  pereat  as  applied  to 
Deeds. — We  have  seen  that  deeds  of  bargain  and  sale,  lease 
and  release  (which  is  merely  a  bargain  and  sale  of  a  term 
by  the  owner  of  a  freehold,  followed  by  a  release  of  the  free- 
hold), and  covenant  to  stand  seised,  are  given  effect  by  the 
Va.  Statute  of  Uses.  But  it  may  happen  that  these  deeds  can 
only  have  the  effect  intended  by  being  construed  as  grants. 
The  deed  of  bargain  and  sale  requires  a  pecuniary  considera- 
tion to  raise  the  use;  a  covenant  to  stand  seised  requires  the 
meritorious  consideration  of  blood  or  marriage.  The  presence 
of  one  or  the  other  of  these  considerations  is  necessary  to  the 
validity  of  a  deed  which  is  to  take  effect  under  the  Statute  of 
Uses.  Wms.  R.  P.  (202)  n.  1.  Jaclson  v.  Sebring,  16  John., 
515.1   But  a  deed  of  grant  requires  no  consideration  of  money 

'85;  1  Devlin  on  Deeds,  §  231;  Tiedeman  R.  P.,  §  807;  2  Min.  Ins. 
(4th  ed.)  727-28,  849,  928.  It  is  certain  that  a  deed  did  not  re- 
quire to  be  signed  at  common  law.  In  2  Min.  Ins.  728,  it  is  said 
to  be  very  questionable  whether,  as  a  general  proposition,  a  deed 
in  Virginia  requires  to  be  signed  as  well  as  sealed.  And  it  is 
added:  "Our  statute  of  conveyances  (V.  C.  1873,  ch.  112,  §  1;  V.  C. 
1887,  ch.  107,  §  2413)  declares  that  no  estate  of  inheritance,  or  of 
freehold,  or  for  a  term  of  more  than  five  years,  shall  be  conveyed 
unless  by  deed  or  will,  leaving  what  constitutes  a  deed  to  be  de- 
termined by  the  general  principles  of  the  law.  But  in  the  case  of 
a  married  woman's  conveyance  (except  of  her  separate  estate  ac- 
cruing to  her  by  the  Married  Woman's  Law)  it  is  expressly  de- 
clared that  it  shall  be  signed  by  both  husband  and  wife.  (V.  C. 
1873,  ch.  117,  §  4;  V.  C.  1887,  ch.  Ill,  §  2502;  Id.  ch.  103,  §  2286.) 
However,  as  it  is  customary  to  sign  as  well  as  to  seal  deeds  of  all 
kinds,  it  would  be  very  imprudent  to  depart  from  the  usage." 

For  full  discussion  of  delivery  of  a  deed,  see  53  Am.  St.  R.  537- 
556,  monographic  note. 

1  Consideration  for  Deed  of  Bargain  and  Sale. — In  Ocheltree  v. 
McClung,  7  W.  Va.,  232,  239,  it  is  said:  "When  a  person  by  deed, 
in  consideration  of  anything  valuable,  bargains  and  sells  land  to 
another,  though  by  the  common  law  the  legal  estate  is  not  af- 
fected, but  a  mere  equitable  use  is  created,  by  force  of  the  statute 
the  legal  estate  is  transferred  to  the  bargainor.  Any  such  con- 
sideration, however  small,  is  sufficient  to  support  the  conveyance. 
And  the  acknowledgment  in  the  deed  that  the  consideration  is 


§§  118,  119]  CONVEYANCES.  139 

or  blood,  not  even,  as  in  the  case  of  the  ancient  feoffment,  to 
repel  the  presumption  of  a  resulting  use  (or  trust),  which 
will  not  now  arise  from  the  mere  fact  that  a  deed  is  without 
consideration,  unless  there  are  other  circumstances  which 
show  that  the  grantee  was  not  intended  to  take  beneficially. 
2  Min.  Ins.  (4th  ed.),  778;  Bisph.  Eq.  §  90.  Wins.  R.  P. 
(183),  n.  1.  Now  it  is  a  rule  that  if  a  deed  cannot  operate 
as  intended,  it  may,  nevertheless,  operate  in  another  way  if 
the  requisites  therefor  are  present,  id  res  magis  valeat  quam 
pereat.  Hence,  if  a  deed  intended  to  operate  under  the  Va. 
Statute  of  Uses  should  fail  to  do  so  for  the  want  of  the  proper 
consideration,  it  would  still  serve  to  pass  the  title  by  way  of 
grant.  Rowletts  v.  Daniels,  4  Munf.,  473;  Watts  v.  Cole,  2 
Leigh,  663;  2  Lorn.  Dig.  (81) ;  2  Min.  Ins.  (4th  ed.),  780. 

§  119.    Form  of  a  Deed  of  Grant  in  Virginia. — "This  deed 
made  the  day  of , 

in  the  year ,  between  (here  insert  names  of 

the  parties),  witnesseth,  that  in  consideration  of  (here  state 

the  consideration)  the  said 

doth  (or  do)  grant  unto  the  said 

all,  etc.  (here  describe  the  propert}r,  and  insert  covenants, 
or  any  other  provisions.)  Witness  the  following  signature  and 
seal  (or  signatures  and  seals)."   See  Code,  §  2437. 1 

paid  is  conclusive  of  the  fact  so  far  as  to  give  effect  to  the  con- 
veyance." And  in  2  Min.  Ins.  (4th  ed.),  807,  it  is  said:  "The 
consideration,  if  valuable,  may  be  a  trifling  one,  and  the  actual 
amount  need  not  be  stated;  nor,  if  it  be  expressed  in  the  deed, 
need  it  be  actually  paid,  no  averment  or  proof  to  the  contrary 
being  admitted.  Indeed,  it  seems  not  absolutely  necessary  that 
the  consideration  should  be  mentioned  at  all  in  the  deed,  as  ex- 
trinsic proof  of  any  consideration,  not  inconsistent  with,  the  deed, 
is  admissible." 

1  Deeds  of  Grant. — When  a  deed  is  executed  by  the  grantor, 
with  a  blank  for  the  name  of  the  grantee,  there  is  conflict  upon 
the  question  whether  such  blank  can  be  filled,  and  the  deed  made 
operative,  by  an  agent  of  the  grantor,  if  the  agent's  authority  be 
~by  parol;  i.  e.,  not  by  deed.    In  Preston  v.  Hull,  23  Grat.  600,  the 


140  REAL    PROPERTY.  [Chap.  7 

§  120.  Construction  of  Deeds. — In  Brine  v.  Insurance  Co., 
96  U.  S.,  627,  it  is  held  that  the  laws  of  the  State  in  which 
land  is  situated  control  exclusively  its  descent,  alienation  and 
transfer,  and  the  effect  and  construction  of  instruments  in- 
tended to  convey  it. 

subject  is  elaborately  examined,  and  the  conclusion  reached  that 
in  such  case  the  deed  is  inoperative  unless  the  agent's  authority 
is  under  seal.  But  in  Lafferty  v.  Lafferty  (W.  Va.),  26  S.  E.  262, 
it  is  held  that  a  blank  in  a  deed  left  for  the  name  of  the  grantee 
may  be  filled,  and  the  deed  made  effectual,  by  an  agent  under 
authority  by  parol  given  by  the  maker  of  such  deed;  and  the  de- 
cision in  Preston  v.  Hull  is  disapproved.  And  see  Cribben  v.  Deal, 
21  Oreg.  211  (28  Am.  St.  R.  746),  where  it  is  held  that  when  a 
deed  is  executed  and  acknowledged  by  the  grantor,  with  a  blank 
left  therein  for  the  name  of  the  grantee,  the  grantor  may,  by 
parol,  authorize  a  third  person  to  insert  the  name  of  such  grantee, 
and  when  so  filled  out  and  delivered,  it  becomes  a  valid  deed. 

In  Allen  v.  Withrow,  110  U.  S.  119,  it  is  said:  "The  deed  in 
blank  passed  no  interest,  for  it  had  no  grantee.  The  blank  in- 
tended for  the  grantee  was  never  filled,  and  until  filled  the  deed 
had  no  operation  as  a  conveyance.  It  may  be,  and  probably  is, 
the  law  in  Iowa,  as  it  is  in  several  States,  that  the  grantor  in  a 
deed  conveying  real  property,  signed  and  acknowledged,  with  a 
blank  for  the  name  of  the  grantee,  may  authorize  another  party, 
by  parol,  to  fill  up  the  blank.  Sivartz  v.  Ballon,  47  la.  188;  Van 
Etta  v.  Evenson,  23  Wise.  33;  Field  v.  Stagg,  52  Mo.  534.  As  said 
by  this  court  in  Drewry  v.  Foster,  2  Wall.  24,  at  p.  33,  'although 
it  was  at  one  time  doubted  whether  a  parol  authority  was  ade- 
quate to  authorize  an  alteration  or  addition  to  a  sealed  instru- 
ment, the  better  opinion  at  this  day  is  that  the  power  is  suffi- 
cient.' But  there  are  two  essential  conditions  to  make  a  deed  thus 
executed  in  blank  operate  as  a  conveyance  of  the  property  de- 
scribed in  it;  the  blank  must  be  filled  by  the  party  authorized  to 
fill  it,  and  this  must  be  done  before  or  at  the  time  of  the  delivery 
of  the  deed  to  the  grantee  named.  Allen,  to  whom  it  is  stated 
the  deed  was  handed,  with  authority  to  fill  the  blank,  and  then 
deliver  the  deed,  gave  it  to  his  wife  without  filling  the  blank,  and 
she  died  with  the  blank  unfilled." 

There  is  also  conflict  on  the  question  whether  if  a  person  signs, 
seals,  and  delivers  a  deed,  he  is  bound  by  it  as  an  operative  con- 
veyance of  his  estate,  although  he  is  not  named  in  it  as  grantor. 
For  full  discussion  of  the  subject,  see  1  Devlin  on  Deeds,  §§  194- 


§  120]  CONVEYANCES.  141 

When  land  is  conveyed  by  general  description,  extrinsic 
evidence  is  admissible  to  ascertain  the  location  of  adjoin- 
ing tracts  called  for,  so  as  to  apply  the  conveyance  to  its 
proper  subject-matter.  Sulphur  Mines  Co.  v.  Thompson,  93 
Va.,  293.  In  questions  of  boundary,  when  the  courses  and 
distances  vary  from  the  natural  boundaries  or  monuments  set 
out  in  the  deed,  the  latter  are  to  be  preferred  in  ascertaining 
the  identity  of  the  tract.  1  Greenl.  Ev.,  §  301 ;  Norfolk  Trust 
Co.  v.  Foster,  78  Va.,  413;  Reusens  v.  Lawson,  91  Va.,  226. 
Particular  boundaries  given  general  description  of  land;  and 
a  false  description  is  rejected,  and  the  instrument  takes  effect 
if  a  sufficient  description  remains  to  ascertain  its  application. 

204.  In  §  204,  the  author  states  his  own  opinion:  "Now,  if  a 
party  signs  a  deed,  he  must  do  it  for  some  purpose.  It  is  in 
practice  the  general  custom  for  deeds  to  be  drawn  by  others  than 
the  parties  to  them.  The  scrivener  may  have  omitted  the  name 
of  the  grantor,  or  by  mistake  may  have  inserted  a  wrong  name. 
If  such  should  be  the  case,  and  a  party  should  sign  a  deed,  in- 
tending to  bind  himself,  all  parties  supposing  he  had  executed  an 
effectual  conveyance,  is  it  reasonable  to  say  that  the  deed  is 
nugatory  because  the  party  signing  was  not  named  in  the  convey- 
ance? The  fact  that  he  signs  and  delivers  the  deed,  should  be 
entitled  to  greater  consideration  in  determining  whether  he  in- 
tended to  convey  his  title,  than  the  writing  of  his  name  in  the 
deed  by  some  one  else.  .  .  .  While  it  may  well  be  that  in 
such  a  case  he  should  not  be  conclusively  bound,  yet  we  think 
that  by  his  signature  and  delivery  of  the  deed  he  should  be  held 
presumptively  to  have  assented  to  its  provisions;  or  at  all  events, 
that  his  intention  should  be  considered  so  uncertain  and  am- 
biguous that  the  court  should,  by  reference  to  all  the  circum- 
stances, not  tending  to  contradict  the  deed,  but  to  explain  the 
conditions  surrounding  its  execution,  attempt  to  ascertain  his 
meaning." 

The  opposite  view  is  taken  by  the  Supreme  Court  of  the  United 
State,  and  by  a  majority  of  the  State  courts.  See  Bank  v.  Rice,  4 
How.  225;  Batchelor  v.  Brereton,  112  U.  S.  396;  and  cases  cited 
by  Devlin,  uti  supra,  from  Massachusetts,  Maine,  Ohio,  Alabama, 
and  Indiana.  But  the  rule  approved  by  Devlin,  that  if  a  person 
signs,  seals,  and  delivers  a  deed,  he  is  bound  by  it,  though  not 
named  as  grantor,  is  said  to  be  the  law  in  New  Hampshire,  Mis- 
sissippi and  California.    West  Virginia  follows  the  law  as  laid 


142  REAL    PROPERTY.  [Chap.  7 

It  is  immaterial  whether  the  true  or  false  description  of  land 
be  placed  first.  The  courts  will  reject  the  false  wherever  found, 
and  give  effect  to  the  intention  of  the  parties  when  so  ex- 
pressed as  to  enable  the  premises  intended  to  be  conveyed  to 
be  identified.  This  is  the  rule  of  construction  falsa  demon- 
stratio  non  nocet  cum  de  corpore  constat.  1  Greenl.  Ev.  §  301 ; 
Hunter  v.  Hume,  88  Va.,  24 ;  State  Savings  Bank  v.  Stewart, 
93  Va.,  447.  Where  a  map  of  land  is  referred  to  in  a  deed  for 
the  purpose  of  fixing  its  boundaries,  it  is  the  same  as  if  it 
were  copied  into  the  deed.  State  Savings  Bank  v.  Stewart, 
supra.  For  a  case  where  parol  evidence  was  inadmissible  to 
vary  the  words  of  the  deed,  see  Holston,  &c,  Co.  v.  Campbell, 
89  Va.,  396.  For  a  case  in  which  the  description  in  the  deed 
was  held  too  vague  and  indefinite  to  pass  title  to  any  tract  of 
land,  see  George  v.  Bates,  90  Va.,  839. 

§  121.  Deeds  Poll  and  Indentures. — A  deed  poll  is  exe- 
cuted by  only  one  party,  and  it  is  in  the  nature  of  a  declara- 
tion made  by  him  of  his  acts  or  obligations  to  some  other 
person.  Thus  a  deed  of  grant  executed  by  the  grantor  alone 
is  a  deed  poll.  An  indenture,  or  deed  inter  partes,  is  an  agree- 
ment under  seal,  between  two  or  more  persons,  both  executing 

down  by  the  Supreme  Court  of  the  United  States.  See  Adams  v. 
Medsker,  25  W.  Va.  127,  131,  where  it  is  said  by  Snyder;  J.:  "I 
have  no  hesitation  in  deciding  that  said  deed  did  not  convey  the 
interest  of  Morgan  Lyons.  While  he  signed  and  acknowledged  it 
as  his  deed,  he  is  nowhere  mentioned  in  it,  or  made  a  party  to  it. 
Neither  his  signature  to,  or  acknowledgment  of  it,  states  or  indi- 
cates whether  he  so  signed  and  acknowledged  it  as  grantor  or 
grantee.  But  if  this  were  otherwise,  and  it  appeared  that  he  in- 
tended to  be  a  grantor,  it  could  not  be  held  to  be  his  deed.  It  is 
elementary  law  that  every  deed  must  have  a  grantor  as  well  as  a 
grantee.  No  one  who  is  not  a  party  to  the  deed  can  be  bound  by 
it,  or  by  its  covenants.  And  no  one  can  be  a  party  who  is  not 
mentioned  or  referred  to  therein.  The  mere  signing  and  acknowl- 
edging it,  when  there  are  grantors  named  in  it,  is  insufficient  to 
make  the  person  so  signing  it  a  party  to  it,  even  though  it  appear 
by  extrinsic  evidence  that  he  intended  thereby  to  make  it  his 
deed." 


§§  120,  121]  CONVEYANCES.  143 

the  instrument;,  and  entering  into  reciprocal  obligations  with 
each  other.  If  it  be  a  deed  of  conveyance,  the  grantee  signs 
and  seals  as  well  as  the  grantor.  And  there  may  be  various 
covenants,  some  binding  on  the  grantor  and  others  on  the 
grantee,  as  is  the  case  with  the  usual  covenants  in  a  lease. 
At  common  law,  it  is  a  rule  that  if  a  conveyance  be  by  inden- 
ture, no  one  not  a  party  to  it  can  take  by  it  any  present  estate 
in  possession,  although  a  remainder  may  be  well  limited  to  a 
j-tranger,  i.  e.,  to  one  not  a  party.  Wms.  E.  P.  (17th  ed.),  183; 
2  Min.  Ins.  (4th  ed.),  901.  And  at  common  law  the  cove- 
nants in  an  indenture  were  only  available  between  the  parties 
to  it  and  their  privies,  and  a  third  person  could  not  maintain 
an  action  of  covenant  upon  it.  But  at  common  law  a  person, 
though  not  a  party  to  a  deed  poll,  could  sue  upon  it  if  the  in- 
strument showed  upon  its  face  that  it  was  made  for  his  benefit. 
Ross  v.  Milne,  12  Leigh,  201;  Jones  v.  Thomas,  21  Grat.,  96; 
Stuart  v.  James  River,  etc.,  Co.,  24  Grat.,  96;  Newberry  Land 
Co.  v.  Newberry  (Va.),  27  S.  E.,  899.  But  now  in  Virginia 
By  Code,  §  2415,  it  is  provided:  ''An  immediate  estate  or  in- 
terest in,  or  the  benefit  of  a  condition  respecting,  any  estate, 
may  be  taken  by  a  person  under  an  instrument,  although  he 
be  not  a  party  thereto ;  and  if  a  covenant  or  promise  be  made 
for  the  sole  benefit  of  a  person  with  whom  it  is  not  made,  or 
with  whom  it  is  made  jointly  with  others,  such  person  may 
maintain,  in  his  own  name,  any  action  thereon  which  he  might 
maintain  in  case  it  had  been  made  with  him  only,  and  the 
consideration  had  moved  from  him  to  the  party  making  such 
covenant  or  promise." 

In  Newberry  Land  Co.  v.  Newberry,  supra,  it  was  said, 
with  reference  to  the  portion  of  the  statute  referring  to  a 
covenant  or  promise:  "If  one  of  the  objects  of  the  statute 
was  to  abolish  the  distinction  between  deeds  inter  partes 
[indentures]  and  deeds  poll  in  the  respect  referred  to,  and 
to  bring  the  former  within  the  rule  of  the  common  law  ap- 
plicable to  the  latter,  it  was  clearly  not  intended  to  change 
that  part  of  the  rule  that  only  a  person  named  or  definitely 


144  REAL    PROPERTY.  [Chap.  7 

pointed  out  in  a  deed  as  the  beneficiary,  can  sue  thereon;  and 
this  was  not  its  effect.  The  statute  does  not  enable  one  who  is 
not  a  party  to  a  deed  to  maintain  an  action  thereon  unless  he 
is  plainly  designated  by  the  instrument  as  the  beneficiary,  and 
the  covenant  or  promise  is  made  for  his  sole  benefit."  And  see 
Johnson  v.  McClung,  26  W.  Va.,  659. 

§  122.  Deeds  Made  by  an  Attorney  in  Fact. — At  common 
law  an  attorney  in  fact,  in  order  to  make  the  deed  that  of 
his  principal,  must  make  and  execute  it  in  the  principal's 
name.  See  for  full  explanation  of  the  reason  of  the  rule,  5 
Bac.  Abr.  Leases  (I.),  10,  p.  571.  As  to  the  body  of  the  deed, 
it  is  essential  that  the  language  should  be,  P  (principal) 
grants  or  covenants  by  A,  his  attorney,  and  not  that  A  grants, 
or  covenants,  as  attorney  for  P.  And  the  seal  must  be  the 
principal's  seal,  and  the  deed  must  be  delivered  as  the  prin- 
cipal's. But  as  to  the  signing  of  the  names  and  the  place  of 
the  principal's  seal,  two  modes  are  admissible.  The  deed  may 
be  signed  P  [seal],  by  A,  his  attorney  (which  is  the  best 
way),  or  A  [seal],  attorney  for  P,  or  For  P,  A  [seal].  But 
in  the  body  of  the  deed,  the  form  must  be :  P  [seal]  by  A,  his 
attorney,  as  was  said  above.  Combe's  Case,  9  Co.  75  a;  Wilks 
v.  Bach,  2  East  142;  Clarke  v.  Courtney,  5  Pet.  319;  Jones 
v.  Carter,  4  H.  &  M.  184;  Martin  v.  Flowers,  8  Leigh,  158; 
Shanke  v.  Lancaster,  5  Grat.  119;  Stinchcomb  v.  March,  15 
Grat.  202;  Ranch  v.  Oil  Co.,  8  W.  Va.  36;  1  Am.  Led.  Cases, 
note  to  Elwell  v.  Shaw  (596).  But  it  is  now  enacted  in  Vir- 
ginia (Code  1849,  ch.  116,  §  3;  Code  1887,  §  2416)  :  "If  in 
a  deed  made  by  one  as  attorney  in  fact  for  another,  the 
words  of  conveyance  or  the  signature  be  in  the  name  of  the 
attorney,  it  shall  be  as  much  the  principal's  deed  as  if  the 
words  of  conveyance  or  the  signature  were  in  the  name  of  the 
principal  by  the  attorney,  if  it  be  manifest  on  the  face  of  the 
deed  that  it  should  be  construed  to  be  that  of  the  principal  to 
give  effect  to  its  intent." 

§  123.  Deed  by  Grantor  Out  of  Possession  with  an  Adverse 
Possession  Against  Him. — At  common  law  such  deed  was  void ; 


§§  121-126]  CONVEYANCES.  145 

but  it  is  now  valid  in  Virginia.  See  Code  §  2418,  enacting 
that :  "Any  interest  in  or  claim  to  real  estate  may  be  disposed 
of  by  deed  or  will."  Carrington  v.  Goddin,  13  G-rat.  587; 
Mustard  v.  Wahlford,  15  Grat.  339.  And  see  C.  V.,  §  2439; 
Harmon  v.  Stearns  (Va.),  27  S.  E.  601. 

II.    Warranty,  or  the  Ancient  Covenant  Real. 

§  124.  Definition  of  Warranty. — "A  warranty,"  says  Lord 
Coke,  "is  a  covenant  real  annexed  to  lands  or  tenements, 
whereby  a  man  and  his  heirs  are  bound  to  warrant  the  same ; 
and  either  upon  a  voucher  or  judgment  in  a  writ  of  warrantia 
chartoB,  to  yield  other  lands  and  tenements  to  the  value  of 
those  that  may  be  evicted  by  a  former  [i.  e.,  paramount]  title, 
or  else  may  be  used  by  way  of  rebutter."  2  Tho.  Coke  (245). 
Warranty  applies  only  to  freehold  interests  in  lands  and  tene- 
ments, and  can  be  created  by  no  word  whatsoever  except 
warrantizo  in  Latin,  or  warrant  in  English.  If  any  other 
word  or  phrase  be  substituted  or  be  joined  with  the  word 
"warrant"  (except  the  auxiliary  will  or  shall)  it  is  not  the 
ancient  covenant  real,  or  ivarranty,  but  it  becomes  a  modern 
personal  covenant,  and  the  remedy  for  its  breach  is  a  personal 
action  for  damages  (money),  and  not  a  real  action  for  other 
land  of  equal  value,  as  in  the  case  of  a  true  warranty. 

§  125.  The  Two  Kinds  of  Warranty. — The  ancient  feudal 
warranty  may  be  either  lineal  or  collateral.  See  2  Bl.  Com. 
eh.  20,  p.  (301),  et  seq.  Lineal  warranty  is  where  the  heir 
on  whom  the  warranty  descends  would  have  inherited  the  land 
warranted  (had  it  not  been  sold)  from  the  same  ancestor 
from  whom  the  warranty  descends.  Collateral  warranty  is 
where  the  heir  on  whom  the  warranty  descends  could  not, 
even  by  possibility,  have  inherited  the  land  warranted  from 
the  same  ancestor  from  whom  the  warranty  descends.  Hence 
in  this  case,  the  warranty  is  aside  from,  or  not  connected  with, 
the  descent  of  the  land,  and  hence  is  called  collateral. 

8  126.  Examples  of  Lineal  and  Collateral  Warranty. — 
(1).    Lineal.    Suppose  a  father  conveys  his  land  in  fee-sim- 

10 


146  REAL    PROPERTY.  [Chap.  7 

pie,  with  warranty  binding  himself  and  his  heirs,  and  then 
dies.  Here  the  warranty  descends  upon  the  eldest  son  (heir 
at  law),  and  the  land  would  have  descended  to  him  from  his 
father  who  gave  the  warranty,  if  the  land  had  not  been  sold, 
and  hence  the  warranty  is  called  lineal.  So  if  a  man's  next 
heir  is  a  nephew,  and  he  conveys  his  land  with  warranty  bind- 
ing his  heirs,  this  is  also  lineal  Avarranty.  For  though  the 
descent  to  the  nephew  is  collateral,  yet  the  warranty  is  lineal, 
for  it  descends  from  the  owner  of  the  land  on  his  heir,  who 
would  have  been  heir  to  the  land  had  it  not  been  sold. 

(2).  Collateral.  Three  cases  may  be  considered :  (a)  Con- 
veyance in  fee  by  a  tenant  by  the  curtesy.  Let  B  and  F  be 
husband  and  wife,  and  let  the  wife  own  land  in  fee-simple. 
S,  son  of  B  and  F,  is  heir  both  to  his  father  and  mother. 
Now,  if  F  dies,  and  B  is  tenant  by  the  curtesy  of  her  land, 
and  so  entitled  to  a  life  estate  only  therein,  if  B  conveys  F's 
land  in  fee-simple,  with  warranty  binding  his  heirs,  this  war- 
ranty is  collateral  as  to  the  son,  because  the  warranty  descends 
upon  him  from  his  father,  while  the  land  descends  from  his 
mother,  he  being  the  common  heir  of  both  parents. 

(&).  Conveyance  in  fee  by  a  tenant  in  dower.  Let  B  and 
F  be  man  and  wife,  and  let  the  land  belong  to  B,  who  dies 
leaving  F,  his  widow,  and  S,  his  son  and  heir.  Now,  if  one- 
third  of  B's  land  is  assigned  F  for  her  life  as  her  dower,  and 
she  conveys  it  to  C  in  fee-simple,  with  waranty  binding  her- 
self and  her  heirs,  this  warranty  is  collateral,  for  the  war- 
ranty descends  upon  the  son  from  his  mother,  whereas  the 
title  to  his  land  was  derived  as  heir  to  his  father. 

(c).  Conveyance  in  fee  by  a  tenant  for  life,  whose  own 
son  is  remainderman  in  fee-simple.  Suppose  the  lord  en- 
feoffs B  for  life,  remainder  to  S  and  his  heirs,  and  that  S  is 
the  son  of  B.  Now,  if  B  conveys  the  land  to  C  and  his  heirs, 
with  warranty  binding  himself  and  his  heirs,  the  warranty  is 
collateral,  for  S's  title  to  the  land  is  received  as  a  purchaser 
under  feoffment  made  by  the  lord,  whereas  the  warranty  de- 
scends upon  him  from  his  father,  whose  heir  he  unfortunately 
happens  to  be. 


§§  126-128]  CONVEYANCES.  147 

§  127.  Effect  of  the  Ancient  Warranty.— (1).  Where  the 
warranty  was  lineal  The  heir  of  course  (at  least  after  the 
right  of  alienation  was  given  by  Quia  Emptores,  1290)  could 
not  claim  the  land  by  descent  from  the  ancestor  who  had  sold 
it  and  conveyed  it  away.  Hence  warranty  was  not  needed  to 
rebut  the  claim  of  the  heir  to  the  ancestor's  land.  But  the 
effect  was  that  if  it  turned  out  that  the  land  did  not  really 
belong  to  the  ancestor,  and  the  purchaser,  with  warranty  bind- 
ing the  heir,  was  evicted  by  the  title  paramount  of  a  third 
person,  the  true  owner,  the  heir,  if  other  lands  had  descended 
to  him  from  the  warranting  ancestor,  was  bound  to  compen- 
sation; i.  e.,  he  was  bound  to  make  good  the  ancestor's  war- 
ranty to  the  purchaser,  by  rendering  him  other  lands  of  equal 
value  with  that  lost  by  the  purchaser.  But  no  heir  at  common 
law  was  thus  bound  to  compensation:  (a)  unless  he  was 
named  in  the  warranty,  and  (b)  unless  he  had  assets  (assez 
enough)  by  descent  from  the  warranting  ancestor  sufficient 
for  compensation. 

(2).  When  the  warranty  was  collateral.  The  effect  was  to 
rebut  or  repel  the  heir  from  claiming,  under  his  own  title 
paramount,  the  land  conveyed  away  by  the,  ancestor.  And 
at  common  law  the  claim  of  the  heir  was  rebutted,  although 
he  received  no  assets  by  descent  from  the  warranting  ances- 
tor. Thus  in  the  three  cases  of  collateral  warranty  put  in 
§  126,  supra,  the  ancestor's  deed  with  warranty  operated  to 
rob  the  heir  of  his  land  derived  from  others  than  the  war- 
ranting ancestor. 

§  128.  Explanation  of  the  Apparent  Injustice  of  Collateral 
Warranty. — Judge  Tucker  suggests  that  as  the  conveyances 
made  in  §  126,  supra,  were  tortious  (i.  e.,  a  feoffment  con- 
veying a  larger  estate  than  the  feoffor  had)  and  a  ground  of 
forfeiture,  the  heir  might  have  made  entry  upon  the  purchaser 
in  his  ancestor's  (father's)  lifetime,  and  thus  have  avoided 
his  ancestor's  deed,  and  the  warranty  therein  at  the  same 
time.  Hence  the  law  presumed,  as  the  heir  did  not  enter,  but 
allowed  the  warranty  to  descend  upon  himself,  that  he  had 


148  REAL    PROPERTY.  [Chap.  7 

received  from  his  ancestor  some  equivalent  for  the  land  con- 
veyed with  warranty,  and  therefore  held  the  warranty  bind- 
ing upon  the  heir,  as  having  been  agreed  to  by  him.  2  Tuck. 
Com.  (238)  ;  3  Lorn.  Dig.  E.  P.  246. 

§  129.    Status  now  of  the  Ancient  Feudal  Warranty. — In 

England  it  is  abolished,  along  with  real  actions,  by  3  and 
4  Will.  IV.  (1833).  Only  the  personal  covenants  for  title  are 
now  in  use  in  England.  But  in  Virginia  the  ancient  warranty 
is  not  abolished,  but  is  reduced  to  reason  by  the  following  en- 
actment (C.  V.,  §  2419)  :  "When  the  deed  of  the  alienor 
mentions  that  he  and  his  heirs  will  warrant  what  it  purports 
to  pass  or  assure,  if  anything  descends  from  him  his  heirs 
shall  be  barred  for  the  value  of  what  is  so  descended,  or  liable 
for  such  value."  The  word  "barred"  above,  has  reference  to 
collateral  warranty,  where  the  land  really  belongs  to  the  heir, 
but  he  is  compelled  by  the  warranty  to  let  it  go  to  the  pur- 
chaser to  the  extent  that  he  (the  heir)  has  assets  by  descent. 
At  common  law  the  heir  was  barred,  even  though  he  received 
no  assets.  The  word  "liable"  above  has  reference  to  a  case 
where  the  purchaser  is  evicted  by  the  title  paramount  of  a 
third  person,  when  the  heir,  out  of  assets  descended,  is  com- 
pelled to  render  compensation  to  such  purchaser.  And  even 
at  common  law  no  heir  was  bound  to  make  compensation  ex- 
cept out  of  and  to  the  extent  of  assets  descended.  And  under 
the  ancient  warranty,  in  making  compensation,  the  land  war- 
ranted was  valued  as  at  the  date  of  the  warranty,  and  not  at 
the  date  of  the  eviction  of  the  purchaser.  See  Threlkeld  v. 
Fitzhugh,  2  Leigh  (451). 

III.    The  Modem  Covenants  of  Title. 

§  130.    Implied  Covenants. 

(1).  In  a  lease  for  years,  a  covenant  for  quiet  possession 
is  implied  from  the  word  "demise,"  or  any  other  word  of 
leasing.  53  Am.  St.  E.,  113-120;  Stott  v.  Rutherford,  92  U. 
S.,  107. 

(2).    In  a  lease  for  life,  the  use  of  the  word  "give,"  or  the 


§§  128-130]  CONVEYANCES.  149 

reservation  of  rent,  implies  the  ancient  feudal  warranty,  but 
not  a  modern  covenant  for  title.  Black  v.  Gilmore,  9  Leigh 
446;  Eawle  on  Covenants  for  Title,  459.  For  the  warranty 
implied  on  exchange  and  partition,  see  Eawle,  Cov.  for  Title, 
457,  473-'78;  Freeman,  Cotenancy  and  Partition,  §  533;  2 
Bl.  Com.  (323). 

(3).  But  when  there  is  a  conveyance  of  the  vendor's  whole 
estate  in  fee-simple,  leaving  in  him  no  reversion,  there  is,  in 
the  absence  of  statute,  no  implied  warranty,  and  no  implied 
covenants  for  title;  and  if  there  is  no  express  warranty  or 
covenants,  the  purchaser  who  is  evicted  by  title  paramount 
of  a  third  person  has  no  recourse  against  the  seller,  but  must 
bear  the  loss  himself.1    But  this  application  of  the  maxim 

1  No  Implied  Warranty  of  Title.— The  rule  is  thus  laid  down 
by  Sugden  (1  Sug.  V.  &  P.  251):  "Generally  speaking,  a  pur- 
chaser after  a  conveyance  has  no  remedy  except  upon  the  cove- 
nants he  has  obtained,  although  evicted  for  want  of  title;  and 
however  fatal  the  defect  of  the  title  may  be,  if  there  is  no  fraudu- 
lent concealment  on  the  part  of  the  seller,  the  purchaser's  only 
remedy  is  under  the  covenants."  And  again  (2  Sug.  V.  &  P.  249) : 
"If  the  conveyance  has  been  actually  executed  by  all  the  neces- 
sary parties,  and  the  purchaser  is  evicted  by  a  title  to  which  the 
covenants  do  not  extend,  he  cannot  recover  the  purchase-money 
either  at  law  or  in  equity."  And  Kent  says  (2  Kent's  Com.  473) : 
"I  apprehend  that  in  sales  of  land,  the  technical  rule  remits  the 
party  back  to  the  covenants  in  his  deed;  and  if  there  be  no  in- 
gredient of  fraud  in  the  case,  and  the  party  has  not  had  the  pre- 
caution to  secure  himself  by  covenants,  he  has  no  remedy  for 
his  money,  even  on  failure  of  the  title."  And  see  Maupin,  Mar- 
ketable Title  to  Rral  Estate,  p.  143,  where  it  is  said:  "As  a  gen- 
eral rule,  the  purchaser's  right  to  relief  against  the  vendor,  in 
case  he  should  suffer  loss  through  a  defective  title,  after  the  con- 
tract has  been  executed  by  a  conveyance,  depends  upon  the  cove- 
nants which  that  conveyance  contains.  If  there  are  no  covenants, 
the  almost  universal  rule  is,  that  the  purchaser  is,  in  the  absence 
of  fraud  or  mistake,  absolutely  without  relief  at  law  or  in  equity." 
See,  also,  to  same  effect,  2  Min.  Ins.  (4th  ed.)  717;  Tiedeman, 
Real  Prop.  §  849.  But  see  Tiedeman,  Real  Prop.  §  859,  where  it  is 
said:  "In  a  number  of  the  States,  notably  Alabama,  Arkansas, 
California,    Delaware,    Illinois,    Iowa,    Mississippi,    Missouri    and 


150  REAL    PROPERTY.  [Chap.  7 

caveat  emptor  only  takes  effect  when  these  three  things  oc- 
cur: (1)  When  the  conveyance  is  in  fee;  (2)  When  the 
buyer  has  accepted  a  deed  of  conveyance  without  warranty  or 
covenants;  and  (3)  When  the  seller  is  guilty  of  no  fraud  or 
deception,  and  is  as  ignorant  of  the  defect  in  the  title  as  the 
buyer  is.  If  these  three  things  concur,  then,  says  Judge 
Tucker,  "the  general  principle  is  now  well  understood  that 
the  vendee  (buyer)  who  does  not  take  proper  covenants  for 
his  security  must  lie  down  under  the  consequences  of  his  own 
negligence,  or  want  of  forecast."  Black  v.  Gilmore,  9  Leigh 
446;  Devlin  on  Deeds,  §  947.  Hence  the  importance  it  con- 
tains of  a  purchaser's  refusing  to  accept  a  deed  unless  express 
covenants  of  title.1 

Pennsylvania,  statutes  have  been  enacted  whereby  the  operative 
words,  'grant,  bargain,  and  sell,'  imply  general  covenants  of  sei- 
sin, against  encumbrances,  and  of  warranty  or  quiet  enjoyment." 
And  see  as  to  the  statutory  effect  of  the  words  "grant,  bargain  and 
sell,"  Maupin,  §  137. 

1  Fraud  and  Mistake. — If  the  vendor  has  been  guilty  of  fraud, 
as  if  he  has  made  misrepresentations  concerning  the  title,  or  has 
concealed  facts  from  which  a  defect  of  title  arises,  the  vendee 
may  have  a  rescission  of  the  contract  in  equity,  or  he  may  sue 
at  law  for  the  deceit.  And  in  the  case  of  fraud,  whether  there  be 
covenants  for  title  in  the  deed  or  not,  the  vendee  may  sue  at 
once  without  waiting  for  an  eviction.  But  a  vendee  not  evicted, 
but  remaining  in  undisturbed  possession,  must  rely  on  his  cove- 
nants, if  any,  except  in  a  case  of  fraud.  These  rules  are  laid  down 
in  Patton  v.  Taylor,  7  How.,  159 :  "A  purchaser  in  the  possession 
of  land  will  not  be  relieved  against  the  payment  of  the  purchase 
money  on  the  mere  ground  of  defect  of  title,  there  being  no  fraud 
or  misrepresentation;  in  such  a  case  he  must  seek  his  remedy  at 
law  on  the  covenants  in  his  deed.  If  there  is  no  fraud  and  no 
covenants  to  secure  the  title,  he  is  without  remedy;  as  the  vendor, 
selling  in  good  faith,  is  not  responsible  for  the  goodness  of  the 
title  beyond  the  extend  of  his  covenants  in  the  deed.  Relief  will 
not  be  granted  on  the  ground  of  fraud  unless  it  be  made  a  dis- 
tinct allegation  in  the  bill  so  that  it  may  be  put  in  issue  by  the 
pleadings."  See,  in  accord,  Noonan  v.  Lee,  supra;  Peters  v.  Bow- 
man, 98  U.  S.,  56;  Feemster  v.  May,  13  Sm.  &  M.,  275;  Wiley  v. 
FitzpatricJc,  3  J.  J.  Marsh.  584;  Elliott  v.  Thompson,  4  Humph.,  99; 


§§  130, 131]  CONVEYANCES.  151 

§  131.  Express  Covenants  for  Title. — For  the  five  cove- 
nants in  use  in  England,  see  Wms.  E.  P.  (447)  ;  2  Devlin 
on  Deeds,  §§  881-957.  The  Virginia  Code  omits  the  first 
("that  the  vendor  is  seised  in  fee-simple")  and  substitutes 
for  the  others  short  forms,  which  it  declares  shall  have  the 
same  effect  as  the  verbose  and  tedious  forms  once  in  use. 
The  four  short  forms  are:  (1)  "That  he  has  the  right  to 
convey  the  said  land  to  the  grantee;"  (2)  "That  the  gran- 
tee shall  have  quiet  possession  of  the  said  land";  (3)  "That 
he  will  execute  such  further  assurance  of  the  said  lands  as 
may  be  required;"  and  (4)  "That  he  has  done  no  act  to 
encumber  the  said  land."     The  second  covenant  above   (for 

Tunc  v.  Rector,  21  Ark.,  283;  Gifford  v.  Benefit  Society,  104  N.  Y. 
139;  Wood  v.  Amory,  105  N.  Y.,  278.  For  the  rule  in  Virginia 
and  West  Virginia  as  to  in  junction  in  favor  of  purchaser  against 
the  collection  of  the  purchase  money,  see  Beetle  v.  Seiveley,  8. 
Leigh,  658,  675;  Walmsley  v.  Stalnaker,  24  W.  Va.,  214  Maupin, 
§  337  and  notes. 

Whether  a  mistake  as  to  the  title,  in  the  absence  of  fraud,  will 
authorize  rescission  when  the  purchaser  gets  the  identical  land 
bought,  but  loses  it  by  failure  of  title,  may  well  be  doubted, 
though  cases  might  occur  of  such  extreme  hardship  as  to  lead 
the  courts  to  make  an  exception.  In  Sutton  v.  Sutton,  7  Grat., 
238,  Judge  Baldwin  says:  "The  property  sold  was  the  identical 
property  conveyed  by  the  deed;  and  there  was  no  room  for  any 
mistake  unless  in  regard  to  the  validity  of  the  grantor's  title.  A 
mistake  in  respect  to  that  matter  is  no  ground  of  relief  to  a  pur- 
chaser when  he  takes  upon  himself  the  risk  as  to  the  title,  as  he 
does  when  he  purchases  land  without  agreement,  express  or  im- 
plied, for  a  conveyance  with  warranty  of  title."  And  see  Adam's 
Eq.  (190).  On  the  other  hand,  it  is  said  in  Thompson  v.  Jackson, 
3  Rand.,  507,  that  if  a  mistake  be  "plain  and  palpable,  and  affect 
the  very  substance  of  the  subject-matter  of  the  contract,"  there 
may  be  rescission,  though  there  is  no  warranty  and  no  mala  fides. 
The  cases  cited  are  Turner  v.  Turner.  2  Ch.  R.,  81;  Bingham  v. 
Bingham.  1  Ves.  Sr.,  126;  Armstrong  v.  Hickman,  6  Munf.,  287; 
Tucker  v.  Cocke,  2  Rand.,  51.  But  quaere  whether  someihin^ 
more  is  not  required  to  constitute  a  mistake  as  to  the  "substance 
of  the  subject-matter"  than  mere  failure  of  title  to  land? 

But  granting  that  a  mistake  as  to  the  validity  of  the  title  is 


152  REAL    PROPERTY.  [Chap.  7 

quiet  possession)  is  equivalent  to  what  is  called  a  "cove- 
nant of  general  warranty,"  of  which  the  Code  declares 
(§  2446)  :  "A  covenant  hy  the  grantor  in  a  deed  'that  he 
will  warrant  generally  that  the  land  thereby  conveyed'  shall 
have  the  same  effect  as  if  the  grantor  had  covenanted  that 
he,  his  heirs,  and  personal  representatives,  will  forever  war- 
irremediable,  there  are  certainly  mistakes  as  to  which  relief 
will  be  granted,  though  there  is  no  charge  of  fraud.  Such  cases  are 
where  the  land  conveyed  is  not  the  land  bargained  for;  or  where 
the  money  is  paid  for  the  purchase  of  land  which  has  no  exist- 
ence; or  when  the  title  fails  for  want  of  authority  in  the  person 
who  makes  the  deed  to  act  in  the  capacity  in  which  he  purports 
to  act.  Mundy  v.  Vawter,  3  Grat,  494;  Martin  v.  McCormick,  8 
N.  Y.,  331;  Kyle  v.  Kavanaugh,  103  Mass.,  356. 

In  Maupin's  Marketable  Title,  618,  the  rule  is  thus  laid  down: 
"If  the  contract  has  been  executed  by  a  conveyance  of  the  land 
to  the  purchaser,  without  general  covenants  for  title,  he  can, 
if  the  title  fails,  neither  recover  back  the  purchase  money  nor 
detain  that  which  remains  unpaid,  either  at  law  or  in  equity, 
unless  the  vendor  was  guilty  of  fraud,  or  the  contract  was 
founded  in  mistake  of  the  parties  as  to  some  fact  upon  which 
the  title  depended."  And  on  page  803,  he  thus  explains  this  class 
of  mistakes:  "Of  the  former  class  are  cases  in  which  the  pur- 
chase is  of  an  interest  or  estate  liable  to  be  divested  upon  the 
happening  of  a  particular  event,  and  that  event  has  already  tran- 
spired without  the  knowledge  of  the  parties,  as  where  the  pur- 
chaser of  an  estate  pur  autrevie  takes  a  conveyance  in  ignorance 
of  the  fact  that  the  person  on  whose  life  the  estate  depends  is 
already  dead.  Of  the  same  class  is  a  case  in  which,  at  the  time 
of  the  sale,  the  parties  were  ignorant  that  the  land  had  previously 
been  sold  and  conveyed  by  one  acting  under  a  power  of  attorney 
from  the  vendor.  In  all  such  cases  the  subject-matter  of  the 
contract  has  no  existence;  there  is  no  mistake  or  title  de  facto 
or  de  jure  in  the  grantor;  and  the  grantee  is  as  much  entitled  to 
rescission  as  the  buyer  of  a  chattel  which,  at  the  time  of  the 
sale,  had  been  destroyed  without  the  knowledge  of  either  party. 
But  care  must  be  taken  to  distinguish  between  mistake  as  to  the 
existence  of  an  estate  of  any  kind  in  the  grantor,  de  facto  or 
de  jure,  and  mere  ignorance  of  the  existence  of  a  paramount  title 
to  the  estate  in  a  stranger,  e.  g.,  mere  ignorance  of  the  fact  that 
a  deed  in  the  grantor's  chain  of  title  is,  for  any  reason,  inop- 
erative to  pass  the  title.    In  such  a  case,  the  ignorance  of  the 


§  131]  CONVEYANCES.  153 

rant  and  defend  the  said  property  unto  the  grantee,  his 
heirs,  personal  representatives  and  assigns,  against  the  claims 
and  demands  of  all  persons  whomsoever."  And  the  covenant 
of  special  warranty  is  the  same,  except  that  the  grantor 
warrants  and  defends  not  against  all  persons  whomsoever, 
but  only  "against  those  claiming,  or  to  claim  by,  through, 
or  wider  him."  And  the  Code  further  provides  that  the 
words  "with  general  warranty"  in  the  granting  part  of  any 
deed  shall  be  deemed  to  be  a  covenant  of  general  waranty, 
and  that  the  words  "with  special  warranty"  in  the  granting 
part  of  any  deed  shall  be  deemed  to  be  a  covenant  of  special 
warranty.    See  on  the  whole  subject,  Code  Va.  ch.  108. x 

defect  is  no  ground  for  rescinding  the  contract,  for  one  of  the 
chief  purposes  of  taking  a  conveyance  with  the  general  warranty 
is  to  provide  against  defects  of  title  of  which  the  parties  are  ig- 
norant. The  words,  "mistake  of  fact,"  used  in  this  connection, 
would  seem  to  imply  some  particular  fact  or  facts  to  which  the 
attention  of  the  parties  was  specially  drawn,  and  which  must  be 
supposed  to  have  been  necessarily  contemplated  by  them  at  the 
time  the  conveyance  was  made.  If  this  were  not  true,  any  con- 
veyance would  be  liable  to  rescission  on  the  ground  of  mistake, 
if,  after  it  had  been  executed,  the  title  should  be  first  discovered 
to  be  bad."  And  he  adds:  "If  a  man  purchase  his  own  estate 
in  ignorance  of  facts  which  would  show  his  right,  he  will  be 
relieved  in  equity.  Thus,  if  an  heir  were  to  take  a  conveyance 
of  his  own  inheritance,  ignorant  of  the  fact  that  he  was  heir, 
there  is  no  doubt  that  equity  would  rescind  the  contract;"  citing 
Bingham  v.  Bingham,  1  Ves.  Sr.,  126;  Cooper  v  .Phibbs,  L.  R., 
2  H.  L.,  170. 

1  Covenants  fok  Title. — For  discussion  of  the  covenant  of 
seisin  ("that  he,  the  said  (grantor),  is  lawfully  seised  of  the 
said  premises"),  see  Maupin,  §§  108-119;  99  Am.  Dec.  73-81), 
note.  As  to  covenants  of  general  and  special  warranty,  see 
Maupin,  §§  134-177.  In  §  135  it  is  said:  "In  a  number  of  States 
the  covenant  of  warranty  includes,  by  virtue  of  statutory  provi- 
sion, or  judicial  construction,  all  the  other  covenants  for  title. 
But  in  most  of  the  States  it  is  regarded  only  as  a  covenant  against 
eviction  by  one  claiming  under  a  superior  title."  Thus  in  Mar- 
bury  v.  Thornton,  82  Va.  702,  it  is  held  that  a  covenant  of  war- 
ranty can  never  be  treated  as  a  covenant  against  encumbrances, 


154  REAL    PROPERTY.  [Chap.  7 

§  132.  Covenants  to  which  the  Purchaser  of  Land  is  En- 
titled.— In  Virginia,  if  the  seller  conveys  in  his  own  right,  as 
owner,  the  purchaser  can  demand  a  clear  title  with  covenant 
of  general  warranty.  See  for  full  discussion,  Maupin,  §§  67- 
70 :  "Covenants  which  the  purchaser  has  a  right  to  demand." 

since  it  would  then  be  broken  as  soon  as  made,  and  would  not 
run  with  the  land.  See,  also,  Bank  v.  Thornton,  83  Va.  157.  But 
in  one  sense  a  covenant  of  warranty  includes  a  covenant  against 
encumbrances;  for  an  eviction  by  the  enforcement  of  an  en- 
cumbrance is  as  much  a  breach  of  the  covenant  of  warranty  as 
if  the  eviction  had  been  by  one  claiming  under  a  superior  title. 
Maupin,  p.  324.  And  on  p.  305,  he  says:  "The  rule  that  a  cove- 
nant against  encumbrances  does  not  run  with  the  land,  is  com- 
paratively unimportant  when  the  deed  contains  also  a  covenant 
of  warranty  which,  of  course,  must  always  be  the  case  in  those 
jurisdictions  in  which,  by  statute  or  judicial  construction,  a 
covenant  of  warranty  includes  a  covenant  against  encumbrances. 
The  covenantee  may  wait  until  he  is  actually  evicted  by  the  en- 
forcement of  the  encumbrance,  or  he  may  suffer  a  constructive 
eviction  by  discharging  the  encumbrance  in  order  to  prevent  an 
actual  dispossession,  and  in  either  case  recover  for  the  breach 
of  the  warranty,  regardless  of  the  covenant  against  encumbrances. 
No  damage,  as  a  general  rule,  flows  from  the  breach  of  the  cove- 
nant until  the  encumbrance  has  been  actually  or  constructively 
enforced,  and  when  that  occurs  the  covenant  of  warranty  is 
broken,  and  an  action  for  damages  immediately  accrues  in  favor 
of  the  person  then  owning  the  premises." 

The  covenant  of  warranty  is  generally  considered  the  principal 
covenant  in  conveyances,  and  when  this  is  special,  and  is  fol- 
lowed in  the  same  sentence  by  other  covenants  in  more  general 
language,  the  subsequent  covenants  will  be  restricted  by  the 
special  covenant  of  warranty,  unless  a  different  intention  is  mani- 
fest. Thus  in  Allemong  v.  Gray,  92  Va.  216,  the  covenants  were 
that  the  grantors  "will  warrant  specially  the  land  hereby  con- 
veyed; that  they  have  the  right  to  convey  the  said  land  to  the 
said  grantees;  that  the  said  grantees  shall  have  quiet  possession 
thereof,  free  from  all  encumbrances;  that  they  will  execute  such 
further  assurance  of  the  said  land  as  may  be  requisite,  and  that 
they  have  done  no  act  to  encumber  the  same";  and  all  the  cove- 
nants were  held  to  be  special,  following  the  lead  of  the  special 
warranty. 

As  to   what  amounts   to  a  breach   of  a   covenant  against  en- 


§  132]  CONVEYANCES.  155 

In  Virginia,  if  the  contract  of  sale  is  silent  as  to  covenants, 
the  vendor  cannot  be  required  to  insert  in  the  deed  any  other 
covenant  than  that  of  general  warranty.  Dickinson  v.  Hoomes, 
8  Grat.,  353;  Kenny  v.  Hoffman,  31  Grat.,  442.  But  those 
who  do  not  convey  in  their  own  right,  as  executors  selling 
under  the  provisions  of  a  will,  commissioners,  guardians, 
etc.,  are  required  to  give  a  special  warranty  only.  And  in 
England,  no  grantor  (except  a  mortgagor)  gives  general  war- 

cumbrances,  see  Tiedman  Real  Prop.  §  853,  where  the  following 
instances  are  given:  "An  inchoate  right  of  dower;  a  judgment 
lien;  an  outstanding  mortgage;  taxes  when  ascertained  and  de- 
termined; an  outstanding  lease  in  possession;  conditions  and 
covenants  restricting  the  use  of  premises.  And  it  may  be  men- 
tioned that  pre-existing  easements  upon  the  land  will  constitute 
breaches  of  the  covenant  against  encumbrances."  As  to  an  in- 
choate right  of  dower,  see  Southern,  etc.,  Ins.  Co.  v.  Kloeber,  31 
Grat.  739;  Ficklin  v.  Rixey,  89  Va.  832.  As  to  a  public  highway- 
through  the*land,  if  known  to  the  purchaser,  it  is  presumed  to 
be  taken  into  consideration  when  the  purchase  is  made,  and  is 
not  a  breach  of  a  covenant  against  encumbrances,  but  it  is  other- 
wise when  the  existence  of  the  highway  was  unknown,  when  the 
purchase  was  made.  Jordan  v.  Eve,  31  Grat.  1;  Trice  v.  Kayton, 
84  Va.  217.  For  full  discussion  of  encumbrances,  see  2  Devlin  on 
Deeds,  §§  905-920;  Maupin,  §§  119-123.  When  the  deed  contains 
no  covenants,  it  is  said  by  Maupin  (p.  620):  "The  rule  that  a 
purchaser  who  has  taken  no  covenants  for  title  can  have  no  re- 
lief if  evicted  from  the  premises  by  one  having  a  better  right, 
is  satisfactory  in  all  cases  in  which  it  appears  that  the  pur- 
chaser intended  to  accept  the  risk  of  a  defective  title,  provided 
that  rule  be  limited  to  cases  where  the  estate  is  lost  through  a 
defect  in  the  title  proper;  that  is,  through  the  assertion  of  an 
outstanding  paramount  title  in  a  stranger.  But  it  is  not  easy 
to  perceive  any  sound  reason  why  a  purchaser  who  pays  off  a 
prior  encumbrance  on  the  land,  or  who  redeems  from  a  purchaser 
under  such  encumbrance,  should  not  be  subrogated  to  the  rights 
of  the  encumbrancer,  without  regard  to  the  existence  or  non- 
existence of  covenants  for  title  in  the  conveyance  under  which 
he  holds.  The  doctrine  of  subrogation  is  a  creature  of  equity,  and 
is  in  no  wise  dependent  on  any  contract  or  covenant  between  the 
parties.  .  .  .  Inasmuch  then  as  any  person  buying  the  en- 
cumbrance, or  paying  it  off,  other  than  a  mere  volunteer,  would 


156  REAL    PROPERTY.  [Chap.  7 

ranty.  See  Wins.  E.  P.  (448) ;  Eawle  on  Cov.  for  Title  36; 
53  Am.  Eep.  749.  For  contract  to  convey  with  general  war- 
ranty, see  Adhins  v.  Edwards,  83  Va.,  300.  See  also  Gish  v. 
Moomaiv,  89  Va.,  376.1 

§  133.  Importance  to  the  Buyer  of  Other  Covenants  than 
that  of  General  Warranty. — Because  general  warranty  is  only 
broken  by  eviction,  whereas  covenants  of  good  right  to  convey 

be  accorded  that  right  [of  subrogation],  justice  would  seem  to 
require  that  a  purchaser  paying  off  the  encumbrance  to  protect 
his  estate  should  be  treated  as  an  equitable  assignee  of  the  rights, 
powers  and  privileges  of  the  encumbrancer,  though  he  took  a 
conveyance  without  covenants  for  title;  unless,  indeed,  it  should 
appear  that  the  existence  of  the  encumbrance  was  known  to  him, 
and  influenced  the  consideration  of  the  conveyance." 

1  Quit-Claim  Deed. — In  Moelle  v.  Sherwood,  148  U.  S.,  21,  29, 
it  is  said:  "In  many  parts  of  the  country  a  quit-claim  or  simple 
conveyance  of  the  grantor's  interest  is  the  common  form  in 
which  the  transfer  of  real  estate  is  made.  A  deed  in  that  form 
is,  in  such  cases,  as  effectual  to  divest  and  transfer  a  complete 
title  as  any  other  form  of  conveyance.  There  is  in  this  country 
no  difference  in  their  efficacy  and  operative  force  between  con- 
veyances in  the  form  of  release  and  quit-claim  and  those  in  the 
form  of  grant,  bargain  and  sale.  If  the  grantor,  in  either  case, 
at  the  time  of  the  execution  of  his  deed,  possesses  any  claim  to, 
or  interest  in,  the  property,  it  passes  to  the  grantee.  In  the 
one  case,  that  of  bargain  and  sale,  he  impliedly  asserts  the  pos- 
session of  a  claim  to,  or  interest  in,  the  property,  for  it  is  the 
property  itself  which  he  sells  and  undertakes  to  convey.  In 
the  other,  that  of  quit-claim,  the  grantor  affirms  nothing  as  to 
the  ownership,  and  undertakes  only  a  release  of  any  claim  to,  or 
interest  in,  the  premises  which  he  may  possess,  without  assert- 
ing the  ownership  of  either."  And  see  1  Devlin  on  Deeds,  §  27; 
Maupin,  §  11. 

As  to  the  effect  of  a  quit-claim  deed  with  a  covenant  of  gen- 
eral warranty,  see  Hull  v.  Hull,  35  W.  Va.,  155,  164,  where  it  is 
said:  "When  a  deed  conveys  the  grantor's  right,  title  and  inter- 
est, though  it  contains  in  general  terms  a  covenant  of  general 
warranty,  the  covenant  is  regarded  as  a  restricted  one,  limited 
to  the  estate  conveyed,  and  not  one  defending  generally  the  land 
described.     The  covenant  of  warranty  is  intended  to  defend  only 


§§  132,  133]  CONVEYANCES.  157 

as  against  encumbrances  are  broken,  if  at  all,  as  soon  as  they 
are  made,  and  the  buyer  can  sue  at  once,  without  waiting  to 
be  evicted.  She  fey  v.  Gardiner,  79  Va.  313;  Meek  v. 
Spracher,  87  Va.  162;  Jones  v.  Richmond,  88  Va.  231.  But 
in  Sheffey  v.  Gardiner,  supra,  it  is  held  that  it  is  a  construc- 
tive eviction  when  the  premises,  at  the  date  of  conveyance, 
are  in  actual  possession  of  a  third  person,  claiming  under 
paramount  title.     See  Maupin,  §  146. 

what  is  conveyed,  and  cannot  enlarge  the  estate  conveyed.  Here 
the  grantors  conveyed  only  their  own  interest."  That  a  pur- 
chaser under  a  quit-claim  deed  takes  subject  to  a  prior  deed  by 
the  vendor  to  another,  though  such  prior  deed  is  unrecorded,  see 
Virginia,  etc.,  Iron  Co.  v.  Fields  (Va.),  26  S.  E.,  426.  As  to 
whether  the  grantee  under  a  quit-claim  deed  is  a  purchaser  for 
value  without  notice,  see  Devlin  on  Deeds,  §§  670-676.  In  Moelle 
v.  Shericood,  148  U.  S.,  21,  it  is  held  that  the  receipt  of  a  quit- 
claim deed  does  not,  of  itself,  prevent  a  party  from  becoming  a 
bona  fide  holder;  and  that  the  doctrine  expressed  in  many  cases, 
that  the  grantee  in  such  a  deed  cannot  be  treated  as  a  bona  fide 
purchaser,  does  not  rest  on  any  sound  principle. 

When  one  grants  land  with  general  warranty,  of  which  he,  at 
the  time,  has  not  the  title,  if  he  afterwards  acquires  the  title, 
it  enures  to  the  grantee.  The  grantor  is  estopped  by  the  war- 
ranty from  denying  that  he  had  the  title  at  the  date  of  his  deed. 
Dosioell  v.  Buchanan,  3  Leigh,  365;  Burtners  v.  Reran,  24  Grat., 
42,  66;  Raines  v.  Walker,  77  Va.,  92;  Gregory  v.  Peoples,  83  Va., 
355;  Nye  v.  Lovitt,  92  Va.,  710;  Ryan  v.  United  States,  136  U.  S., 
68,  88.  But  if  the  deed  purports  to  convey  only  "all  the  right, 
title  and  interest"  of  the  grantor  in  the  premises  described,  i.  e., 
is  a  quit-claim  deed,  a  covenant  of  general  warranty  is  confined 
to  the  right,  title,  or  interest  conveyed,  and  does  not  estop  him 
from  asserting  a  subsequently  acquired  title  in  the  premises. 
Hanrick  v.  Patrick,  119  U.  S.,  156.  And  while  the  general  rule 
is  that  where  land  is  conveyed  without  warranty,  the  grantor  is 
not  estopped  from  setting  up  an  after-acquired  title,  yet  ''where 
the  deed  recites  or  affirms,  expressly  or  impliedly,  that  the  grantor 
is  seised  of  a  particular  estate  which  the  deed  purports  to  con- 
vey, and  upon  the  faith  of  which  the  bargain  was  made,  he  will 
be  thereafter  estopped  to  deny  that  such  an  estate  was  passed 
to  his  vendee,  although  the  deed  contains  no  covenant  of  war- 
ranty at  all."  Reynolds  v.  Cook,  83  Va.,  817,  821,  per  Lewis,  P., 
citing  Van  Rensselaer  v.  Kearney,  11  How.    (U.  S.),  297. 


158  REAL    PROPERTY.  [Chap.  7 

§  134.  Covenants  for  Title  Bunning  with  the  Land. — A 
covenant  runs  with  the  land  when  it  passes  to  a  purchaser 
from  the  first  purchaser,  so  that  the  second  purchaser  can 
sue  the  original  vendor  (covenantor).  The  doctrine  is  that 
no  covenant  after  breach  is  assignable.  Hence  no  covenant 
which  is  broken,  if  at  all,  as  soon  as  made,  can  run  with  the 
land.  Hence  covenants  of  seisin,  good  right  to  convey,  and 
against  encumbrances,  do  not  run  with  the  land,  and  are  not 
available  except  to  the  original  purchaser.  But  covenants 
for  quiet  enjoyment,  of  warranty,  general  and  special,  and 
for  further  assurance,  are  future  in  their  operation,  and  are 
not  broken  as  soon  as  made,  and  so  do  run  with  the  land,  and 
are  available  to  any  purchaser  in  the  series,  second,  third,  or 
fourth,  who  may  have  occasion  to  resort  to  it.  See  2  Devlin 
on  Deeds,  §§  940-'42;  Dickinson  v.  Hoomes,  8  Grat.  353, 
395;  Marbury  v.  Thornton,  82  Va.  702;  Lydich  v.  R.  Co.,  17 
W.  Va.  427;  47  Am.  Dec.  569-577,  note.1 

1  Covenants  Running  with  the  Land. — In  England  all  of  the 
five  covenants  for  title  run  with  the  land.  See  Rawle,  Cove- 
nants for  Title,  ch.  10.  Also  53  Am.  Dec.  570,  where  it  is  said: 
"In  America,  however,  the  rule  is  different.  Though  some  of  the 
States  follow  the  English  doctrine  [see  as  to  this,  Maupin,  §§ 
112,  128],  the  general  rule  of  decision  has  drawn  a  distinction 
between  the  covenants  of  seisin,  of  right  to  convey,  and  against 
encumbrances,  and  those  of  warranty  and  quiet  enjoyment,  hold- 
ing that  the  former  are  personal,  and  do  not  run  with  the  land, 
while  the  latter  run  with  the  land,  and  are  binding  on  subse- 
quent assignees."  The  two  reasons  why  a  covenant  of  seisin 
does  not  run  with  the  land  are  thus  stated  by  Maupin  (§  111): 
"(1)  That  the  covenant  in  question  is  broken  as  soon  as  made, 
if  the  covenanter  has  no  title,  and  that  a  present  right  of  action 
immediately  accrues  thereupon  to  the  covenantee,  which  being 
a  mere  chose  in  action,  is  both  at  common  law,  and  by  virtue  of 
the  statute  of  32  Hen.  VIII.,  c.  24,  incapable  of  assignment;  and 
(2)  That  the  grantor  and  covenanter  having  no  title,  no  estate 
could  pass  by  his  conveyance  to  the  covenantee,  and  that  conse- 
quently there  was  nothing  with  which  the  covenant  could  run 
so  as  to  enure  to  the  benefit  of  a  remote  grantee."  The  first  of 
these  reasons  is  equally  applicable  to  a  covenant  against  encum- 


§§134,135]  CONVEYANCES.  159 

§  135.  Measure  of  Damages. — When  a  covenant  of  general 
warranty  is  broken  by  eviction  of  the  grantee  by  a  third 
person  with  a  paramount  title,  the  grantee  recovers  the 
consideration  paid  hy  him,  with  the  interest  from  date  of 
eviction,  the  consideration  paid  being  conclusively  presumed 
to  be  the  value  of  the  land  at  the  time  of  conveyance  and 
warranty.  He  cannot  recover  the  value  of  the  land  at  the 
time  of  his  eviction,  if  it  has  risen  in  value ;  and,  on  the  other 
hand,  he  is  entitled  to  recover  the  price  paid,  though  the  land 
has  fallen  in  value.     See  Stout  v.  Jackson,  2  Eand.,  132; 

brances.  Maupin,  §  128.  But  when  covenants  run  with  the 
land,  the  benefit  of  the  covenant  enures  to  the  remote  purchaser 
by  operation  of  law,  not  as  an  assignee  of  the  covenant,  but  as 
owner  of  the  land  to  which  it  is  attached,  and  by  reason  of 
privity  of  estate.  It  follows  that  the  assignee  can  sue  the  re- 
mote vender  thereon  at  law,  and  in  his  own  name.  It  has 
been  suggested  that  covenants  which  do  not  run  with  the  land 
may  be  available  to  a  subsequent  purchaser  in  equity,  or  by  an 
action  at  law  in  the  name  of  the  original  covenantee.  Maupin, 
§§  112,  154.  And  see  2  Min.  Ins.  (4th  ed.),  p.  717,  where  it  is 
said:  "It  must  be  noted  that  no  covenant  which  is  broken  is 
capable  of  being  afterwards  assigned  at  laiv."  And  in  Rawle  on 
Covenants  for  Title,  it  is  said:  "As  the  obstacle  which  prevents 
an  assignee  from  suing  on  these  covenants  is  merely  technical, 
it  may  be  presumed  that  if  the  American  courts  deem  themselves 
restrained  by  authority  from  getting  over  it  and  adopting  the 
English  rule,  they  will  at  least  be  prepared  to  sustain  a  suit  in 
the  name  of  the  original  covenantee  for  the  benefit  of  those 
claiming  under  him  by  purchase.  This  must  be  the  case  if  the 
assignee  of  the  land  be  held  to  be  an  equitable  assignee  of  the 
covenant;  and  as  such  must  certainly  be  his  position  when  the 
covenant  is  expressly  assigned  at  the  time  of  the  conveyance,  it 
would  seem  that  the  mere  conveyance  of  the  land  may  be  thought 
to  imply  a  transfer  of  the  covenant,  on  the  general  rule  that 
the  assignment  of  the  principal  draws  with  it  the  accessory." 
But  guwre  whether  there  is  not  a  material  distinction  in  this 
case  between  an  express  and  implied  assignment;  and  whether 
an  assignment  should  be  implied  when  its  effect  would  be,  by  a 
mere  change  in  the  form  of  action,  to  make  all  covenants  run 
with  the  land. 


160  REAL    PROPERTY.  [Chap.  7 

Threlheld  v.  Fitzhugli,  2  Leigh  (451);  Click  v.  Green,  77 
Va.,  827;  Sheffeij  v.  Gardiner,  79  Va.,  313;  Conrad  v.  E fin- 
ger, 87  Va.,  59;  Roller  v.  Effinger,  88  Va.,  641;  Butcher  v. 
Peterson,  26  W.  Va.,  447;  Sroo&s  v.  B/acfc  (Miss.),  24  Am. 
St.  E.,  254,  and  note,  266-268.1 

1  Measure  of  Damages  for  Breach  of  Warranty. — All  the  late 
Virginia  cases  cited  above  affirm  the  rule  laid  down  inThrelkeld 
v.  Fitzhugli,  2  Leigh,  451,  which  is  thus  more  fully  stated  in  the 
head-note:  "The  proper  measure  of  damages  is  the  purchase 
money,  with  interest  from  the  date  of  the  actual  eviction,  the 
costs  incurred  in  defending  the  title,  and  such  damages  [i.  e., 
for  mesne  profits]  as  the  vendee  may  have  paid,  or  may  be  shown 
to  be  clearly  liable  to  pay,  to  the  person  who  evicted  him  [i.  e., 
by  title  paramount].  And  see  24  Am.  St.  R.,  266,  where  the  rule 
is,  in  substance,  thus  stated,  and  is  said  to  prevail  in  all  the 
States  except  Connecticut,  Maine,  Massachussets  and  Vermont,  in 
which  it  is  held  that  the  correct  measure  of  damages  for  a  total 
breach  of  warranty  of  title  is  the  value  of  the  land  at  the  date 
of  eviction,  with  interest  and  the  costs  and  expenses  of  the  suit 
in  which  the  injured  party  has  been  evicted.  For  the  measure 
of  damages  for  breach  of  covenant  of  seisin  or  good  right  to 
convey  (same  as  for  breach  of  warranty),  see  99  Am.  Dec, 
73-81,  note.  Of  course,  in  case  of  partial  eviction,  the  damages 
are  apportioned.     24  Am.  St.  R.  267. 

But  while  the  rule  is  that  the  vendee  recovers  the  price  paid 
by  him,  as  above  stated,  neither  vendor  nor  vendee  is  concluded 
by  the  consideration  recited  in  the  deed  of  conveyance,  and  it 
may  be  shown,  by  extrinsic  evidence,  what  was  the  real  considera- 
tion, whether  more  or  less  than  that  recited.  Summers  v.  Dame, 
31  Grat,  804;  Click  v.  Green,  11  Va.,  827.  And  it  is  well  set- 
tled that  the  vendee  may  purchase  the  paramount  title  by  which 
he  could  have  been  evicted,  and  in  such  case  he  may  recover  as 
damages  the  sum  he  paid  therefor,  provided  it  does  not  exceed 
the  price  paid  the  vandor.  See  Maupin,  §  168;  24  Am.  St.  R., 
267.  But  though  the  vendee  succeeds  in  buying  in  the  paramount 
title  at  much  less  than  the  price  paid  for  the  land  by  him  to  the 
vendor,  he  can  only  recover  of  the  vendor  the  amount  expended; 
for  he  stands  towards  the  vendor  in  a  fiduciary  relation,  and 
can  claim  no  more  than  his  actual  expenditure  in  perfecting  the 
title.  Roller  v.  Effinger,  88  Va.,  641.  As  to  the  effect  of  bring- 
ing in  the  warrantor  to  defend  the  title  when  the  buyer  is  sued 


§  135]  CONVEYANCES.  161 

by  one  claiming  under  an  alleged  title  paramount,  see  43 
Am.  Dec,  569-573,  note. 

As  the  covenant  of  warranty  runs  with  the  land  it  is,  of  course, 
available  to  the  last  vendee  during  whose  possession  the  eviction 
occurs;  indeed,  the  right  of  action  is  in  him,  and  he  only  can 
sue  the  remote  vendor  (original  covenantor)  in  the  first  instance. 
But  when  his  immediate  vendor  also  conveyed  with  warranty,  the 
last  vendee  has  his  election  to  sue  either  his  immediate  vendor 
or  the  first  vendor;  or  he  may  sue  them  both,  and  recover  judg- 
ment against  each;  but,  of  course,  there  can  be  but  one  satisfac- 
tion. And  if  the  last  vendee  recovers  of  his  immediate  vendor, 
then  such  vendor  can  sue  the  original  vendor  on  his  warranty. 
See  Tiedeman,  §  860;  Maupin,  §  159. 

But  it  may  happen  that  the  price  paid  by  the  last  vendor  was 
more  or  less  than  that  received  by  the  original  grantor.  In  such 
case,  if  the  last  vendee  sue  the  original  grantor,  what  shall  be 
the  measure  of  damages — the  price  the  last  vendee  has  paid,  and 
which  he  could  recover  of  his  own  grantor,  or  the  consideration 
received  by  the  first  grantor?  On  this  question  the  c?ses  are  in 
conflict.  For  full  discussion,  see  Brooks  v.  Black,  68  Miss., 
161  (24  Am.  St.  R.,  259).  In  the  note  to  that  case  (p.  268)  it  is 
said  that  in  Maryland,  Minnesota,  North  Carolina  and  Tennessee 
it  is  held  that  the  last  vendee  can  only  recover  what  he  has  paid 
to  his  own  vendor  with  interest  and  with  costs.  And  this  rule 
is  approved  by  Maupin  (Marketable  Title,  §  166)  where  the  con- 
sideration paid  for  the  land  by  the  last  vendee  is  less  than  that 
received  by  the  first  vendor;  but  he  adds:  "If  he  paid  more  than 
the  original  purchase  money  he  cannot  recover  the  excess  on 
the  original  covenantor's  warranty.  The  measure  of  damages  for 
which  the  covenantor  is  liable  cannot  be  increased  by  a  transfer 
of  the  land."  On  the  other  hand,  in  Iowa,  Kentucky,  Mississippi 
and  South  Carolina  it  is  held  that  the  last  vendee  can  recover 
the  full  amount  of  the  consideration  received  by  the  remote 
vendor,  with  interest  and  costs,  without  regard  to  the  amount  he 
himself  has  paid.  And  this  rule  is  ably  vindicated  in  Brooks  v. 
Black,  supra.     See  Conrad  v.  Efflnger,  87  Va.,  59. 


11 


CHAPTER  VIII. 

Title  by  Adverse  Possession. 

§  136.  Introductory. — Title  by  adverse  possession  rests 
upon  the  statutes  limiting  the  time  within  which  the  owner 
must  sue  for  the  recovery  of  his  land  in  the  adverse  posses- 
sion of  another.  By  such  adverse  possession  for  the  statutory 
period,  the  title  of  the  lawful  owner  is  lost  to  him  by  his 
neglect  to  sue,  and  vests  in  him  who  is  in  possession,  who 
thus  acquires  a  title  by  prescription.  See  Campbell  v.  Holt, 
115  U.  S.  620,  623;  Probst  v.  Presbyterian  Church,  129 
U.  S.  182;  Sharon  v.  Tucker,  144  U.  S.  533;  Jones  v. 
Thomas,  28  Grat.  383;  Corneal  v.  Lynch,  91  Va.  114;  Hall 
v.  Hall,  27  W.  Va.  468,  480;  Langdell,  Summ'y  Eq.  PL, 
§§   121-'22. 

§  137.  The  Virginia  Statute  of  Limitations  as  to  Land. — 
Code  of  Va.,  §  2915,  enacts:  "No  person  shall  make  an 
entry  on  or  bring  an  action  to  recover,  any  land  lying  east 
of  the  Allegheny  mountains  but  within  fifteen  years,  or 
any  land  lying  west  of  the  Allegheny  mountains  but  within 
ten  years,  next  after  the  time  at  which  the  right  to  make  such 
entry  or  bring  such  action  shall  have  first  accrued  to  him- 
self, or  to  some  person  through  whom  he  claims.  For  the 
purposes  of  this  section,  the  county  of  Carroll  shall  be  held 
and  considered  as  lying  wholly  west  of  the  Allegheny  moun- 
tains." In  West  Virginia,  entry  or  action  must  be  made 
within  ten  years;  Code  W.  Va,  ch.  104,  §  1.  In  Texas  within 
ten  years;  Horn  v.  Smith,  79  Tex.  310  (23  Am.  St.  Rep.  340). 
The  period  varies  from  ten  to  twenty-one  years  in  the  different 
states.  When  several  persons  enter  upon  land  in  succession, 
the  several  adverse  possessions  can  be  tacked  so  as  to  make  up 

1C2 


§§  136-139]       TITLE    BY    ADVERSE    POSSESSION.  163 

the  statutory  period  to  bar  the  owner,  provided  that  between 
such  person  there  is  privity  of  title  or  claim.  H  oiling  s- 
worth  v.  Sherman,  81  Va.  668;  Jarrett  v.  Stevens,  36  W. 
Va.  445.  That  there  can  be  no  adverse  possession  against 
the  State,  see  Reusens  v.  Lawson,  91  Va.  226;  Buntin  v. 
City  of  Danville,  93  Va.  200. 

§  138.  Effect  of  the  Statutes. — It  must  be  remembered 
that  no  owner  of  land  can  be  barred  of  his  title  unless  he 
has  been  put  to  his  entry  or  action  for  the  statutory  period, 
and  this  cannot  be  unless  the  owner  is  out  of  possession  of 
his  land  with  a  claimant  in  the  possession  of  it,  holding  it 
adversely  to  the  owner.  Such  claimant  must  be  in  adverse 
possession. 

§  139.  What  is  Adverse  Possession  of  Land? — In  order  to 
be  adverse,  the  defendant's  possession  must  be  (1)  actual; 
(2)  open  and  notorious;  (3)  exclusive;  (4)  in  defiance  of 
and  hostile  to  the  true  owner  (the  plaintiff) ;  (5)  and  with 
claim  of  title  in  himself.  Taylor  v.  Burnsides,  1  Grat. 
(165)  (190);  Andrews  v.  Roseland,  etc.,  Co.,  89  Va.  393; 
Core  v.  Faupel,  24  W.  Va.  238;  Sharon  v.  Tucker,  144  U.  S. 
533;  1  Am.  &  Eng.  Ency.  Law  (2nd  ed.)  789.  And  to 
bar  the  owner,  such  adverse  possession  must  continue  without 
interruption  for  the  statutory  period.  Let  us  examine  these 
requisites  in  their  order.1 

1  Requisites  for  Adverse  Possession. — In  Swann  v.  Young,  36 
W.  Va.,  57,  72,  it  is  said  of  adverse  possession:  "It  must  be  'con- 
tinuous' and  'uninterrupted'  for  the  period  (ten  years  by  our  law) 
prescribed  by  the  statute;  'continuous'  in  the  sense  of  not  being 
abandoned  by  himself;  'uninterrupted'  in  the  sense  of  not  being 
effectively  broken  by  another."  In  addition  to  the  requisites 
stated  in  the  text,  it  is  sometimes  said  that  a  possession  to  be 
adverse 'must  be  "honest,"  or  ''bona  fide."  See  on  this  point  1 
Am.  &  Eng.  Ency.  Law  (2nd  ed.),  p.  868,  n.  3,  where  it  is  said: 
"The  requirement  of  good  faith  in  an  adverse  claimant  is  gen- 
erally held  to  be  material  only  when  a  person  is  claiming  con- 
structive possession  under  color  of  title;  and  does  not  apply 
when  there  is  a  disseisin  of  the  true  owner,  and  an  actual,  open 


164  REAL    PROPERTY.  [Chap.  8 

(1).  Actual.  The  true  owner  cannot  be  barred  unless  the 
claimant  takes  actual  possession  of  the  land.  For  what 
constitutes  actual  possession,  see  opinion  of  Baldwin,  J.  in 
Taylor  v.  Burnsides,  1  Grat.  166,  192.  See  also  Turpin  v. 
Saunders,  32  Grat.  27;  Lennig  v.  White  (Va.)  20  S.  E.  831; 
Swann  v.  Young,  36  W.  Va.  57;  Parhersburg,  etc.,  Co.  v. 
Schultz  (W.  Va.),  27  S.  E.  255;  Ward  v.  Cochran,  150  IT.  S. 
597;  Willamette,  etc.,  Co.  v.  Hendrix  (Oreg.)  52  Am.  St. 
E.  800.    As  to  what  is  necessary  to  constitute  actual  possession 

and  adverse  possession,  which  exposes  the  claimant  [occupant] 
to  an  action  by  the  true  owner."  And  this  distinction  is  believed 
to  be  sound.  The  true  owner  is  equally  disseised,  and  "put  to 
his  entry  or  action"  by  the  actual  adverse  possession  of  the  hos- 
tile claimant,  whether  such  possessor's  claim  be  in  good  or  bad 
faith.  In  11  Harvard  Law  Review,  553,  it  is  said:  "The  essence 
of  adverse  possession  is  that  the  holder  occupies  not  under,  but 
in  opposition  to,  the  right  of  the  true  owner.  By  the  better  opin- 
ion, color  of  title  is  not  necessary,  nor  even  the  belief  that  the 
claim  is  well  founded  in  law  or  in  fact.  The  test  is  whether  the 
true  owner  could  have  brought  an  action  against  the  holder  dur- 
ing the  period."  And  see  Bispham's  Equity  (5th  ed.),  §  261; 
Tiedeman,  Real  Prop.,  §  699;  1  Devlin  on  Deeds,  §  113.  But,  on 
the  other  hand,  when  the  claimant  under  color  of  title  demands 
that,  by  virtue  thereof,  he  shall  be  accorded  constructive  adverse 
possession  beyond  the  bounds  of  his  actual  enclosure,  and  to  the 
extent  of  his  colorable  claim,  it  seems  right  to  deny  this  effect 
to  his  color  of  title,  unless  he  has  acquired  it  in  good 
faith.  See  1  Am.  &  Eng.  Ency.  Law,  861,  where  the  doctrine  is 
thus  stated:  "Such  good  faith  is  required  in  order  that  a  person 
entering  upon  land  under  color  of  title  may  be  deemed  to  be  con- 
structively in  possession  of  the  whole,  though  actually  occupy- 
ing only  a  part  of  the  land,  or  in  other  words,  there  can  be  no 
constructive  possession,  unless  the  occupying  claimant  relies  in 
good  faith  upon  the  validity  of  his  apparent  title."  And  on  page 
868,  it  is  said:  "If  the  instrument  constituting  color  of  title  was 
obtained  by  fraud  on  the  part  of  the  grantee,  or  with  a  knowledge 
by  him  that  it  conveys  no  title,  he  cannot  have  the  advantage  of 
an  entry  under  color  of  title."  See  Andrews  v.  Roseland,  etc., 
Iron  Co.,  89  Va.  393;  Swann  v.  Young,  36  W.  Va.  57;  Wilson  v. 
Atkinson  (Calif.),  11  Am.  St.  R.  299;  35  Am.  St.  R.  617,  note. 
But  see  3  Va.  Law  Reg.  772. 


§139]  TITLE    BY    ADVERSE    POSSESSION.  165 

of  wild  or  uncleared  lands,  in  a  state  of  nature,  see  Harmon 
v.  Ratliff,  93  Va.  249.  In  Core  v.  Faupel,  supra,  it  is  said : 
"The  most  usual  and  decisive  acts  of  actual  possession  are 
occupation,  residence,  cultivation,  enclosure,  and  improve- 
ment." See,  for  full  discussion,  1  Am.  &  Eng.  Ency.  Law 
(2nd  ed.)  822. 

(2).  Open  and  Notorious.  The  defendant's  possession,  in 
order  to  effect  an  ouster  or  disseisin  of  the  true  owner,  must 
possess  such  notoriety  that  the  owner  may  be  presumed  to 
have  notice  of  it,  so  that  the  owner  is  guilty  of  laches 
(neglect)  in  failing  to  assert  his  title  during  the  statutory 
period  against  the  claimant.  See  Core  v.  Faupel  and  Turpin 
v.  Saunders,  supra;  also  Lagorio  v.  Dozier,  91  Va.  493. 
For  discussion  of  what  amounts  to  notoriety,  see  28  Am.  St. 
Eep.  158-162,  note.  And  see  35  km.  St.  E.  617,  note,  where 
it  is  said :  "To  render  possession  adverse,  it  must  not  only 
be  actual,  but  also  visible,  continuous,  notorious,  distinct,  and 
hostile,  and  of  such  a  character  as  to  indicate  unmistakably 
an  assertion  of  claim  of  exclusive  ownership  in  the-  occupant." 

(3).  Exclusive.  For  reason,  see  Taylor  v.  Burnsides,  1 
Grat.  190;  Core  v.  Faupel,  24  W.  Va.  245;  Brownsville  v. 
Cavazos,  100  TJ.  S.  138;  Ward  v.  Cochran,  150  U.  S.  597; 
3  Va.  Law  Eeg.  769 ;  Tied.  E.  P.,  §  698. 

(4).  Hostile  to  the  owner.  This  is  manifestly  necessary. 
Thus  the  possession  of  a  tenant,  or  of  a  trustee  holding  as 
such,  is  not  hostile  to  the  landlord  or  cestui  que  trust,  for  it 
is  in  subordination  to,  and  with  recognition  of,  the  title  of 
the  landlord  of  cestui  que  trust.  In  order  to  render  his 
holding  adverse,  the  possessor  must  throw  off  allegiance  (as 
it  were)  to  the  true  owner,  defying  him  and  repudiating  his 
title.  This  can  be  done  by  even  a  tenant  or  trustee,  but  not 
while  he  holds  as  tenant  or  trustee.  See  Nowlin  v.  Reynolds, 
25  Grat.  137;  Bowie  v.  Poor  School  Society,  etc.,  75  Va.  300; 
H oiling s worth  v.   Sherman,  81   Va.   668;   Va.  Mining,  etc., 


166  REAL    PROPERTY.  [Chap.  8 

Co.  v.  Hoover,  82  Va.  449;  HodgJcin  v.  McVeigh,  86  Va. 
751;  Oney  v.  Clendenin,  28  W.  Va.  334.1 

(5)  With  claim  of  title  in  himself.  This  follows  from 
the  preceding  requisites,  and  it  results  that  a  mere  squatter 
on  another's  lands  who  is  there  by  sufferance  and  without 
any  claim  of  title,  cannot,  no  matter  how  long  he  stays 
upon  the  land,  acquire  title  thereto  by  adverse  possession. 

1  Possession  Begun  in  Privity  with  Owner, — In  Creekmur  v. 
Creekmur,  75  Va.  430,  436,  it  is  said  by  Staples,  J.:  "The  only  dis- 
tinction between  this  class  of  cases  and  those  in  which  no  privity 
existed,  is  in  the  degree  of  proof  required  to  establish  the  adverse 
character  of  the  possession.  The  rule  now  is  that  where  pos- 
session is  originally  taken  or  held  under  the  true  owner,  a  clear, 
positive,  and  continued  disclaimer  and  disavowal  of  title,  and  the 
assertion  of  an  adverse  right  to  be  brought  home  to  the  knowl- 
edge of  the  party,  are  indispensable  before  any  foundation  can 
be  laid  for  the  operation  of  the  statute  of  limitations.  The  stat- 
ute does  not  begin  to  operate  until  the  possession,  before  in  priv- 
ity with  the  title  of  the  true  owner,  becomes  tortious  and  wrong- 
ful by  the  disloyal  acts  of  the  occupying  tenant,  which  must  be 
open,  continued  and  notorious,  so  as  to  preclude  every  doubt  as 
to  the  character  of  the  holding,  or  the  fact  of  knowledge  on  the 
part  of  the  owner."  And  see  in  accord  Hulvey  v.  Hulvey,  92  Va. 
182,  186. 

In  addition  to  the  cases  cited  in  text,  see  (1)  as  to  landlord 
and  tenant:  Wilcher  v.  Robertson,  78  Va.  602;  Reusens  v.  Law- 
son,  91  Va.  226;  Swann  v.  Young,  36  W.  V.  57;  (2)  as  to  co-ten- 
ants: 8ton,estreet  v.  Doyle,  75  Va.  356;  Fry  v.  Payne,  82  Va.  759; 
Buford  v.  Land  and  Imp.  Co.,  90  Va.  418;  Lagerio  v.  Dozier,  91 
Va.  492;  Pilloiv  v.  Soutliw.  Imp.  Co.,  92  Va.  144;  (3)  as  to  vendee 
and  vendor:  Whitlock  v.  Johnson,  87  Va.  323;  Chapman  v.  Chap- 
man, 91  Va.  397;  County  of  Allegheny  v.  Parrish,  93  Va.  615; 
Flynn  v.  Lee,  31  W.  Va.  487;  Kern  v.  Hoivell  (Pa.),  57  Am.  St. 
R.  641;  (4)  as  to  remainderman  or  reversioner  and  tenant  for 
life  (tenant  by  the  curtesy  or  in  dower) :  Dooley  v.  Baynes,  86 
Va.  644;  Hulvey  v.  Hulvey,  92  Va.  182;  Meacham  v.  Bunting  (111.), 
47  Am.  St.  R.  239;  (5)  as  to  heirs  of  husband  and  widow  occupy- 
ing mansion  house  and  curtilage  until  dower  assigned  (C.  V, 
§  2274);  Hannon  v.  Hounihan,  85  Va.  429.  On  whole  subject,  see 
1  Am.  and  Eng.  Ency.  Law,  p.  797-821. 

As  to  the  effect  of  possession  taken  and  held  through  a  mistake 


§§  139-140]       TITLE    BY    ADVERSE    POSSESSION.  167 

Such  squatter  "lies  low,"  and  does  not  dare  to  rise  up  and 
defy  the  owner  to  his  face.  See  cases  above;  also  Creek- 
mur  v.  Creekmur,  75  Ya.  431.  And  see  Parkersburg,  etc., 
Co.  v.  Schultz  (W.  Va.),  27  S.  E.  255,  where  it  is  said: 
"Mere  naked  possession  of  land,  without  claim  of  right,  is 
no  adverse  possession ;  and  no  matter  how  long  continued, 
will  not  furnish  a  defence  to  an  action  or  confer  title." 

§  140.  Distinction  Between  Claim  of  Title  Without  Color, 
and  Claim  of  Title  with  Color. — Color  of  title  is  an  appar- 
ently good  title,  without  the  reality,  as,  for  example,  under 
an  invalid  deed,  or  under  a  junior  patent  to  land.  In  order 
to  constitute  adverse  possession,  it  is  not  necessary  that  the 
claim  of  title  should  be  with  color;  i.  e.,  with  a  colorable 
right.  When,  however,  there  is  a  claim  only  and  no  color, 
the  adverse  possession  is  restricted  to  the  claimant's  actual 
enclosure;  whereas  if  there  be  a  claim  with  color  therefor, 
the  adverse  possession  is  not  confined  to  the  actual  enclosure, 
but  extends  as  far  as  the  color  extends;  e.  g.,  to  the  boundaries 
of  the  invalid  deed,  or  of  the  junior  patent.     See  Tied.  E.  P., 

as  to  the  true  location  of  the  boundary,  the  cases  are  in  conflict. 
See  for  discussion  24  Am.  St.  R.  388-390,  note,  and  9  Harvard 
Law  Review,  467-470,  where  the  cases  are  collected,  and  the  bet- 
ter view  declared  to  be  that  a  mistake  as  to  the  boundary  does 
not  prevent  the  possessor's  title  from  being  adverse.  This  view 
rests  on  the  ground  that  he  is  in  actual  possession,  with  claim 
of  right,  and  that  it  does  not  matter  that  the  possessor  was  mis- 
taken as  to  the  boundary,  and  that  but  for  such  mistake  would 
not  have  entered  on  the  land.  In  other  words,  adverse  possession 
does  not  require  that  the  occupant  should  be  a  wilful  and  con- 
scious wrong-doer;  and  "it  is  not  the  intent  to  disseise  another, 
but  the  intent  to  possess  for  himself  and  as  his  own,  which  makes 
the  entry  on  the  land  of  another  a  disseisin."  24  Am.  St.  R. 
390,  note.  And  see  Tiedeman  R.  P.,  §  699.  Thus  in  Caufield  v. 
Clark  (Oreg.),  11  Am.  St.  R.  845,  it  is  held  that  one  who,  by  mis- 
take as  to  boundaries,  enters  upon  and  occupies  land  not  embraced 
in  his  title,  claiming  it  as  his  own  for  the  requisite  statutory 
period,  thereby  becames  invested  with  the  title  founded  upon  a 
mistake.  For  the  opposite  view,  see  Finch  v.  Ullman  (Mo.),  24 
Am.  St.  R.  383. 


168  REAL    PROPERTY.  [Chap.  8 

§  696;  Creehmur  v.  Creehmur,  75  Va.  431;  Core  v.  Fanpel, 
24  "W.  Va.  245.  But  it  is  obvious  that  there  can  be  no 
constructive  possession  by  reason  of  color  of  title,  unless  he 
who  claims  under  the  invalid  deed,  or  patent,  which  gives 
color,  has  actual  possession  of  a  part  of  the  land  in  con- 
troversy. Harman  v.  Ratliff,  93  Va.  249 ;  Breeden  v.  Haney 
(Va.),  29  S.  E.  328;  Willamette  &c.  Co.  v.  Hendrix  (Oreg.), 
52  Am.  St.  E.  800.1 

1  Claim  op  Title  with  Color. — As  to  what  constitutes  color  of 
title,  see  Sulphur  Mines  Co.  v.  Thompson,  93  Va.  293,  319,  where 
it  is  said:  "Color  of  title  necessarily  implies  that  the  party  re- 
lying upon  it  must  claim  under  something  that  has  the  semblance 
of  title.  A  private  survey  and  map,  never  recorded,  not  referred 
to  or  made  a  part  of  the  deed  under  which  the  party  relying  on  it 
claimed,  cannot  be  considered  color  of  title."  For  an  examination 
of  the  question,  what  constitutes  in  Virginia  such  color  of  title 
as  will  give  the  possessor  constructive  possession  beyond  his  ac- 
tual enclosure,  see  article  by  F.  W.  Sims,  Esq.,  2  Va.  Law  Reg. 
551.  The  conclusion  reached  by  Mr.  Sims  is  as  follows:  "Color 
of  title,  under  which  constructive  possession  will  be  given,  must 
be  by  deed  or  other  writing,  which  purports  or  contracts  to  pass 
title,  and  which  contains  sufficient  terms  to  designate  the  land 
in  question  with  such  certainty  that  the  boundaries  thereof  can 
be  ascertained  by  the  application  of  the  general  rules  governing 
the  location  of  land  conveyed  by  deed."  See  Blakey  v.  Morris, 
89  Va.  717;  Hall  v.  Laio,  102  U.  S.  461.  And  see  Hulvey  v.  Hulvey, 
92  Va.  183,  where  it  is  held  that  although  a  deed  of  conveyance 
of  real  estate  from  a  grantor  who  has  no  title  conveys  no  title  to 
the  grantee,  yet  it  constitutes  color  of  title.  For  full  discussion, 
see  1  Am.  and  Eng.  Ency.  Law  (2nd  ed.),  846-861. 

For  the  distinction  made  in  the  text  between  the  effect  of  a 
claim  of  title  without  color,  and  a  claim  with  color,  and  that  a 
colorable  claim  gives  constructive  possession  to  the  extent  of  the 
color,  see  Taylor  v.  Burnsides,  1  Grat.  191-'92;  H oiling sworth  v. 
Sherman,  81  Va.  668;  Blakey  v.  Morris,  89  Va.  717;  Stull  v.  Rich 
Patch  Iron  Co.,  92  Va.  253;  Hall  v.  Hall,  27  W.  Va.  468;  Oney  v. 
Clendennin,  28  W.  Va.  35;  Jarrett  v.  Stevens,  36  W.  Va.  445; 
Mullan  v.  Carper,  37  W.  Va.  215;  Randolph  v.  Casey  (W.  Va.), 
27  S.  E.  231;  Parker sour g,  etc.  Co.  v.  Schultz  (W.  Va.),  27  S.  E. 
255;  Hunnicutt  v.  Peyton,  102  TJ.  S.  333;  12  Am.  Dec.  357-59,  note. 

It  is  stated  in  the  text  that  a  claim  of  title  without  color  is 


§§140,141]       TITLE    BY    ADVERSE    POSSESSION.  169 

§  141.  Application  of  the  Doctrine  of  Adverse  Possession 
to  Conflicting  Patents  or  Deeds  to  Land.— Let  us  suppose  that 
the  State  grants  to  A  a  patent  to  certain  lands,  and  after- 
wards grants  to  B  a  patent  which  conflicts  with  A's;  i.  e., 
which  covers  in  the  whole  or  in  part  the  land  embraced 
by  A's  patent.  A  is  called  the  senior  patentee,  and  B  the 
junior  patentee,  and  the  land  in  dispute,  covered  by  both 
patents,  is  called  the  interlock.  Now,  if  B  enters  on  part 
of  the  land  covered  by  his  patent,  and  ocupies  it  adversely 
for  the  statutory  period,  it  becomes  a  question  as  to  the 
effect  of  such  possession  by  B;  and  this  may  depend  on  the 
part  of  the  land  which  B  occupies,  and  further  on  the  consid- 
eration whether  during  the  statutory  period  A  also  occupies 
a  part  of  the  land  embraced  by  his  patent,  outside  of  or 
within  the  interlock.  Four  classes  of  cases  are  to  be  con- 
sidered, but  in  all  of  them  the  principles  are  the  same. 

I.  When  B's  patent  covers  that  of  A  in  part  only,  the 
land  patented  to  B  lying  partly  within  and  partly  without 
the  boundaries  of  A's  patent. 

(1).  When  A  has  no  actual  possession,  and  B  has  no 
actual  possession.  A's  senior  patent  gives  to  his  constructive 
seisin  (Taylor  v.  Burnsides,  1  Grat.  (158),  (202));  and  as 
neither  has  actual  possession,  A  has  of  course  the  better 
right  to  the  interlock.  Cline  v.  Catron,  22  Grat.  378; 
Carter  v.  Hagan,  75  Va.  557;  Holleran  v.  Meisel,  91  Va.  143; 
Garrett  v.  Ramsay,  26  W.  Va.  315,  351,  353,  373;  White  v. 
Ward,  35  W.  Va.  418. 

(2).  When  A  has  no  actual  possession,  but  B  is  in  posses- 
sion of  part  of  his  tract   outside  of  the  interlock.     A  has 

sufficient  to  give  adverse  possession  of  the  claimant's  actual  en- 
closure. And  in  Wade  v.  Johnson  (Ga.),  21  S.  E.  569,  it  is  held 
that  possession  of  land  under  a  color  of  title,  however  long  con- 
tinued, will  not  ripen  into  a  prescriptive  title,  nor  serve  for  tack- 
ing to  make  out  the  full  term  for  prescription,  if,  instead  of 
being  attended  by  a  claim  of  right,  such  right  be  expressly  dis- 
claimed pending  the  possession.  So  claim  of  title  is  essential 
in  all  cases. 


170  REAL    PROPERTY.  [Chap.  8 

the  better  right  to  the  interlock;  for  B  is  outside  of  the 
interlock,  and  on  his  own  land  (the  junior  patent),  and  is 
not  on  A's  land  at  all.  Hence  A  cannot  be  affected  by  B's 
possession  of  B's  own  land.  B's  possession  of  his  own 
land  is  rightful,  and  not  adverse  to  A.  Koiner  v.  Ran- 
Jcin,  11  Grat.  420;  Cline  v.  Catron,  22  Id.  378;  Turpin 
v.  Saunders,  32  Grat.  27;  Garrett  v.  Ramsay,  26  W.  Va. 
334;  Trimble  v.  Smith,  4  Bibb.  (Ky.)  257.  See  Sulphur 
Mines  Co.  v.  Thompson,  93  Va.  293,  321,  where  it  is  said 
by  Buchanan,  J. :  "Where  there  are  conflicting  titles,  if  the 
junior  claimant  settles  within  his  boundary,  but  outside  of 
the  interlock,  he  gains  no  actual  possession  of  the  land  in 
controversy,  whether  the  possession  of  the  senior  claimant 
be  actual  or  constructive  only.  Where  there  is  no  con- 
troversy, the  rule  that  possession  of  a  part  is  possession  of 
the  whole  is  to  be  taken  with  reference  to  the  entire  tract; 
but  when  there  is  a  conflict  of  title,  it  is  to  be  taken  with 
reference  to  such  conflict.  Without  actual  possession  of 
some  part  of  the  land  in  controversy,  the  junior  claimant 
can  gain  no  possession  of  that  subject  against  the  better  right 
of  the  senior  claimant.  If  the  law  were  otherwise,  as  was 
said  by  Judge  Baldwin,  the  lawful  owner  might  be  disseised, 
not  only  without  his  knowledge,  but  without  the  means  of 
acquiring  it.  Taylor  v.  Burnsides,  1  Grat.  169,  200  (side 
page  196)."  And  a  fortiori  will  A  have  a  better  right  when 
A  is  in  possession  of  a  part  of  his  tract  outside  of  the  inter- 
lock, or  part  of  the  interlock  itself.  Ilsley  v.  Wilson  (W. 
Va,),26  S.  E.  551. 

(3).  When  A  is  not  in  actual  possession  at  all,  and  B  is 
in  possession  of  part  of  the  interlock.  Then  B's  actual  pos- 
session of  part  of  the  land  in  controversy  (interlock),  with 
color  of  title  to  the  whole  interlock  by  reason  of  the  junior 
patent,  gives  B  constructive  adverse  possession  of  the 
whole  of  the  interlock.  See  Garrett  v.  Ramsay,  26  W.  Va. 
353,  opinion  of  Green,  J. ;  lb.  373,  opinion  of  Snyder,  J. 
See  also  Overton  v.  Davisson,  1  Grat.   (211),  (224)  ;  Koiner 


§  141]  TITLE    BY    ADVERSE    POSSESSION.  171 

v.  Rankin,  11  Grat,  420,  424;  Andrews  v.  Roseland,  etc., 
Co.,  89  A7a.  393;  Shdl  v.  Rich  Patch  Co.,  92  Va.  253; 
Harmon  v.  Ratliff,  93  Va.  249;  Buford  v.  Cox,  5  J.  J. 
Marsh.  (Ky.)  587;  Clarke  v.  Courtney,  5  Pet.  319;  Hun- 
nicutt  v.  Peyton,  102  U.  S.  395;  Smith  v.  Gale,  144  U.  S. 
509. 

(4).  "When  A  and  B  are  both  in  possession  of  part  of 
the  interlock.  Then,  since  A  is  on  the  interlock,  and  has 
the  eider  title  by  reason  of  the  senior  patent,  B's  adverse 
possession  is  confined  to  his  actual  enclosure.  Overton  v. 
Davisson,  1  Grat.  (224)  ;  Stall  v.  Rich  Patch  Iron  Co.,  92 
Va.  253,  280;  Garrett  v.  Ramsay,  26  W.  Va.  357,  374; 
Hunt  v.  WicMiffe,  2  Pet.  201;  Hunnicutt  v.  Peyton,  102 
IT.  S.  333;  1  Am.  &  Eng.  Ency.  Law  (2nd  ed.)  871. 

(5).  When  A  is  in  possession  of  a  part  of  his  tract  outside 
of  the  interlock,  and  B  is  in  possession  of  part  of  the  inter- 
lock. Here  the  doctrine  at  common  law  is  that  B's  adverse 
possession  is  confined  to  his  actual  enclosure.  For  A  is  on 
his  tract  and  has  the  elder  title,  and  so  has  constructive  pos- 
session of  all  his  tract  not  actually  occupied  by  B.  See 
Green  v.  Liter,  8  Cranch  229;  Hunnicutt  v.  Peyton,  102 
TJ.  S.  333;  1  Am.  &  Eng.  Ency.  Law  (2  ded.),  872.  But  in 
Virginia  an  act  was  passed  in  1792  (now  found  in  Code, 
§  2740)  declaring  that:  "In  a  controversy  affecting  real 
estate,  possession  of  part  shall  not  be  construed  as  posses- 
sion of  the  whole,  when  an  actual  adverse  possession  can 
be  proved."  It  is  still  unsettled  in  Virginia  whether  this 
statute  has  altered  the  common  law  so  as  to  give  B  a  right 
to  the  whole  interlock,  when  B's  entry  upon  the  interlock 
is  subsequent  to  A's  entry  on  his  tract  outside  of  the  inter- 
lock. Shdl  v.  Rich  Patch  Iron  Co.,  92  Va.  253,  281.  See 
Taylor  v.  Burnsides,  1  Grat.  165,  211,  where  Baldwin,  J., 
held  that  the  statute  gave  B  the  better  right,  and  Stanard, 
J.,  held  that  A  was  entitled  to  all  of  the  interlock  not  in 
B's  actual  possession.  But  in  Garrett  v.  Ramsay,  26  W. 
Va.  345,  the  question  was  decided  under  the  act  of  1792  in 


172  REAL    PROPERTY.  [Chap.  8 

favor  of  B.,  Green,  J.,  dissenting  and  preferring  the  view 
of  Stanard,  J.,  in  Taylor  v.  Burnsides,  supra.  For  an  able 
discussion  of  this  open  question  in  Virginia,  see  3  Va.  Law 
Eeg.  763,  article  by  Mr.  H.  C.  McDowell,  Jr.,  in  which  it  is 
contended  (following  judge  Green  in  Garrett  v.  Ramsay) 
that  the  act  of  1792  is  declaratory  of  the  common  law,  and 
that  A  has  the  better  right.  And  see  3  Va.  Law  Eeg.  843, 
article  by  Prof.  E.  C.  Minor,  where,  upon  the  construction 
of  the  statute,  a  conclusion  is  reached  in  favor  of  B.  The 
law  of  West  Virginia  is  now  in  favor  of  B  in  express  terms, 
by  a.  special  statute  enacted  in  1879.  See  Code  W.  Va., 
ch.  90,  §  19.  And  in  Virginia  it  is  held  that  if  B  has  pos- 
session of  the  part  of  the  interlock  before  the  entry  of  A 
on  his  tract  outside  of  the  interlock,  such  subsequent  entry  of 
A  does  not  oust  the  constructive  possession  by  B  of  the 
whole  interlock,  and  B  can  obtain  title  by  adverse  posses- 
sion to  the  whole  interlock.  See  Stull  v.  Rich  Patch  Iron 
Co.,  92  Va.  279,  relying  upon  Taylor  v.  Burnsides,  1  Grat. 
165,  209,  as  deciding  the  question.1 

1  The  Open  Question  in  Virginia. —  In  Stull  v.  Rich  Patch  Iron 
Co.,  92  Va.  281,  it  is  thus  stated  by  Buchanan,  J.:  "Does  the  ad- 
verse possession  of  a  claimant  under  a  junior  title  extend  to  the 
whole  of  his  tract,  or  only  to  the  extent  of  his  enclosures,  where 
there  are  conflicting  grants  or  deeds  to  land  causing  an'  inter- 
lock, the  claimant  under  the  older  title  being  in  actual  possession 
of  a  part  of  his  land  outside  of  the  interlock,  when  the  claimant 
under  the  junior  title  entered  upon  and  took  actual  possession 
of  part  of  the  interlock,  claiming  title  to  the  whole  extent  of  his 
boundary."  It  will  be  seen  that  the  doubt  arises  from  the  fact 
that  the  senior  patentee  or  grantee  was  already  in  possession 
outside  of  the  interlock  at  the  time  when  the  junior  patentee  or 
grantee  takes  possession  of  part  of  the  interlock. 

The  Virginia  statute  which  causes  the  doubt  went  into  effect 
December  19,  1792  (see  "Acts  of  General  Assembly,  1794,"  ch.  76, 
§  28,  p.  119),  where  the  language  is  the  same  as  in  Code  of  1887, 
except  that  "real  estate"  has  been  substituted  in  the  Code  for 
"lands,  tenements  and  hereditaments."  The  occasion  for  the 
passage  of  the  statute  is  not  manifest,  and  very  diverse  views 
have  been,  and  are,  held  as  to  its  meaning  and  construction.     It 


§141]  TITLE    BY    ADVERSE    POSSESSION.  173 

II.  When  the  patents  exactly  coincide.  Here  the  inter- 
lock includes  all  the  land  patented  to  both  A  and  B. 

(1).  When  neither  A  nor  B  is  in  possession.  Then,  of 
course,  A  has  the  better  right,  having  the  senior  patent. 
And  this  is  true,  a  fortiori,  where  A  has  actual  possession 
of  part  of  the  land,  and  B  is  not  in  possession  of  any  part. 

(2).  When  A  has  no  actual  possession,  and  B  has  actual 
possession  of  part  of  the  land.  Then  B  has  adverse  pos- 
session of  the  whole,  under  principle  laid  down  in  I.  (3), 
supra. 

(3).  When  A  has  actual  possession  of  part  of  the  land, 
and  B  has  possession  of  another  part.  Then  B's  adverse  pos- 
session is  confined  to  the  limits  of  his  actual  possession  on 
principle  laid  down  in  I.  (4),  supra. 

N".  B. — As  the  two  patents  precisely  coincide,  neither  A 
nor  B  can  be  in  possession  of  any  part  of  his  tract  outside 
of  the  interlock,  and  hence  it  is  impossible  for  the  cases 
under  I.  (2)  and  (5),  supra,  to  arise. 

III.  When  B's  patent  is  entirely  within  A's.     The  same 

would  seem  that  it  should  be  read  thus:  "In  controversies  affect- 
ing real  estate,  possession  [by  the  senior  patentee  or  grantee]  of 
part  [of  his  tract]  shall  not  be  construed  as  possession  [by  him] 
of  the  whole  [of  his  tract]  when  an  actual  adverse  possession 
[by  the  junior  patentee  or  grantee  of  part  of  the  land  in  contro- 
versy] can  be  proved."  See  Garrett  v.  Ramsay,  26  W.  Va.  376, 
where  it  is  said  by  Snyder,  J.,  delivering  the  opinion  of  the  court: 
"The  'real  estate  in  controversy,'  referred  to  in  the  statute,  is 
necessarily  the  land  in  the  interlock,  because  the  land  outside 
of  this,  whether  within  the  elder  or  the  junior  grant,  is  not  in 
controversy;  and  the  words  'actual  adverse  possession,'  used  by 
the  statute,  just  as  necessarily  and  certainly  refer  to  the  posses- 
sion of  the  junior  claimant,  for  the  word  adverse,  if  applied  to 
the  elder  title,  would  be  meaningless,  there  being  no  such  thing 
as  an  adverse  possession  by  the  true  owner.  .  .  .  The  owner 
or  elder  grantee  never  holds  adversely  to  the  junior  claimant, 
who  has  no  title,  but  merely  a  color  of  title.  If  the  owner  is  in 
possession  at  all,  he  is  there  as  owner  and  by  virtue  of  his  title, 
and  not  as  an  adverse  claimant." 


174  REAL    PROPERTY.  [Chap.  8 

principles  apply  as  under  I.,  supra.     See  Stull  v.  Rich  Patch 
Iron  Co.,  92  Va.  253. 

IV.  When  A's  patent  is  entirely  within  B's.  The  same 
principles  apply  as  under  I.,  supra. 

§  142.  Disabilities  of  Coverture,  Infancy,  and  Insanity. — 
By  Code  Va.  §  2917 :  "If  at  the  time  at  which  the  right  of  any 
person  to  make  entry  on,  or  bring  an  action  to  recover,  any 
land,  shall  have  first  accrued,  such  person  was  an  infant, 
married  woman,  or  insane,  then  such  person  or  the  person 
claiming  through  him,  may,  notwithstanding  the  said  period 
mentioned  in  §  2915  [fifteen  or  ten  years,  as  was  stated 
in  §  137,  supra]  shall  have  expired,  make  an  entry  on  or 
bring  an  action  to  recover  such  land  within  ten  years  next 
after  the  time  at  which  the  person  to  whom  such  right  shall 
have  first  acrued  as  aforesaid,  shall  have  ceased  to  be  under 
such  disability  as  existed  when  the  same  so  accrued,  or  shall 
have  died,  whichever  shall  first  have  happened.".  Buford  v. 
Land  and  Imp.  Co.,  90  Va.  419.  But  this  indulgence  does  not 
apply  as  to  a  married  woman's  separate  estate.  C.  V.  §  2917. 
See  Randolph  v.  Casey  (W.  Va.),  27  S.  E.  231.  And  by 
§  2918,  it  is  provided  that  in  no  case  shall  the  indulgence 
allowed  by  reason  of  the  above  disabilities  extend  beyond 
twenty  years  after  the  right  of  entry  or  action  shall  have 
first  accrued. 

§  143.  Tacking  Disabilities. — This  is  not  allowed.  Thus, 
if  when  the  cause  of  action  arises,  the  person  entitled  is  an 
infant,  but  marries  under  twenty-one,  coverture  cannot  be 
added  to  infancy;  and  the  bar  of  the  statute  attaches  as 
soon  as  ten  years  elapse  after  full  age.  And  this  is  the 
case,  a  fortiori,  if  one  is  an  infant  when  the  cause  of  action 
arises,  and  does  not  marry  until  some  time  after  reaching 
twenty-one.  See  Blaclcivell  v.  Bragg,  78  Va.  529.  If,  how- 
ever, when  the  cause  of  action  arises,  the  owner  is  both 
an  infant  and  a  feme  covert,  the  statute  does  not  begin  to 
run  until  both  disabilities  cease.  See  Wilson  v.  Branch,  77 
Va.  65. 


§§141-144]       TITLE    BY    ADVERSE    POSSESSION.  175 

§  144.  Period  to  be  Subtracted  in  Computing  Time  in  Vir- 
ginia.— By  Code  Ya.,  §  2919,  the  period  between  April  17, 
1861  (secession  of  Virginia)  and  January  1,  1869  (expira- 
tion of  the  Stay  Law),  is  to  be  subtracted  in  estimating  the 
time  which  has  elapsed  under  the  statute  of  limitations,  and 
under  the  doctrine  of  adverse  possession  of  land.  See  Brewis 
v.  Lawson,  76  Va.  36;  Updike  v.  Lane,  78  Va.  132;  Norvell 
v.  Little,  79  Ya.  141 ;  II  oiling  swortli  v.  Sherman,  81  Ya.  668 ; 
Va.  Mining  Co.  v.  Hoover,  82  Va.  449;  Alexander  v.  Byrd, 
85  Va.  690. 


CHAPTER  IX. 


CO-TENANTS. 


Under  this  head  are  to  be  considered  (1)  Joint  Tenants; 
(2)  Tenants  by  Entireties;  (3)  Tenants  in  Common;  and 
(4)  Coparceners. 

I.  Joint  Tenants. 

§  145.  Definition. — Joint  tenancy  is  a  joint  seisin  of  the 
freehold  or  a  joint  possession  of  an  estate  not  of  freehold. 
This  mode  of  holding  feuds  was  greatly  favored  in  ancient 
times,  as  insuring  to  the  lord  an  adult  retainer  (or  vassal) 
to  attend  the  lord  to  the  wars,  etc. ;  for  the  land,  and  with 
it  the  feudal  obligations,  devolved  upon  the  survivor  (or 
survivors)  of  several  joint  tenants,  instead  of  descending  in 
parts  to  the  heirs  of  each.  Besides,  the  common  law  "loves 
not  fractions  of  estates,  nor  to  divide  and  multiply  tenures." 
2  Bl.  Com.  (193),  n.  25. 

§  146.  Unities  of  Joint  Tenants. — For  the  four  unities 
which  characterize  joint-tenancy,  see  2  Bl.  Com.  (180).  As 
to  unity  of  time,  this  was  essential  where  joint  tenants  re- 
ceived the  land  by  feoffment;  but  it  is  now  settled  that 
under  a  devise,  or  by  a  conveyance  to  uses,  several  may  be 
joint  tenants  though  their  estates  vest  at  different  times. 
In  a  devise  or  in  a  deed  b}r  way  of  use,  it  is  the  joint  claim 
by  the  same  conveyance  which  makes  joint  tenants,  and  not 
the  time  of  vesting.  And  in  Virginia  the  same  doctrine  is 
doubtless  applicable,  since  1850,  to  the  statutory  deed  of 
grant.     See  2  Min.  Ins.,  403. 

§  147.  Unity  of  Interest. — Joint  tenants  have  unity  of  in- 
terest in  two  senses:  (a)  they  have  the  same  estate  in  the 
land,   i.   e.,   each  has   a   fee-simple,   fee-tail,   etc.;   and    (b) 

176 


§§  145-148]  CO-TENANTS.  177 

they  have,  as  between  themselves,  equal  shares,  i.  e.,  each 
is  entitled  to  the  same  proportion  of  the  rents  and  profits, 
and  each  can  convey  to  a  stranger  his  interest  in  the  land, 
which  is  just  the  same  as  that  of  each  of  his  companions, 
viz:  one-third  if  there  are  three  joint  tenants,  one-fourth  if 
there  are  four,  etc. 

§  148.  Unity  of  Possession. — .Joint  tenants  have  unity  of 
possession,  and  this  also  in  two  senses.  They  have,  in  the 
first  place,  unity  of  possession  in  the  sense  in  which  all 
tenants  who  do  not  hold  in  severalty  have,  i.  e.,  they  hold 
the  land  together,  and  not  separately,  and  each  being  in 
rightful  possession  of  all  the  land,  no  one  can  sue  another 
for  trespass.  But,  in  the  second  place,  unity  of  possession, 
as  applied  to  joint  tenants,  denotes  that  oneness  or  entirety 
of  interest  which  the  law  describes  by  the  maxim  that  joint 
tenants  are  seised  "per  my  et  per  tout,"  i.  e.,  by  nothing  and 
by  all.  The  meaning  is,  that  joint  tenants  are  not  seised, 
like  tenants  in  common,  each  of  his  undivided  share,  but 
each  joint  tenant  is  seised  of  all  the  land.  Survivorship 
is  the  necessary  result  of  such  holding.  For  each  has  all 
together  with  the  rest,  and  nothing  separately  by  himself, 
which  is  the  meaning  of  their  being  seised  per  my  et  per 
tout.  Hence,  when  one  joint  tenant  dies,  he  (or  his  heir) 
has  nothing  separately,  and  all  remains  with  the  survivor 
(or  survivors)  as  before.  And  as  each  joint  tenant  is  seised 
of  all  the  land,  it  follows  that  one  joint  tenant  cannot 
convey  his  interest  to  his  companion  by  livery  of  seisin,  for 
the  other  is  already  seised.  Hence,  a  release  is  the  proper 
form  of  conveyance  by  one  joint  tenant  to  the  other.  As  to 
the  mode  of  operation  of  such  release,  with  the  "diversity" 
according  as  one  of  two  joint  tenants  releases  to  his  com- 
panion, or  one  of  the  three  to  one  only  of  the  other  two,  see 
1  Tho.  Co.  (765);  2  Id.,  514.  Under  C.  V.,  §.  2417,  one 
joint  tenant  can  convey  his  interest  to  the  other  by  deed 
of  grant.  2  Min.  Ins.  (4th  ed.),  479.  But  the  law  does 
not  push  the  fiction  of  one  person  so  far  as  to  deny  to  each 

12 


178  REAL    PROPERTY.  [Chap.  9 

joint  tenant  an  equal  share  of  the  rents  and  profits ;  or  an 
equal  interest  in  the  land  or  a  conveyance  by  one  joint  tenant 
to  a  stranger  (third  person).  As  to  per  my  et  per  tout, 
see  2  Bl.  Com.  (182%  where  it  is  wrongly  translated  "by 
the  half  or  moiety,  and  by  all."  This  is  a  mistake,  as  "my 
(or  "mie")  signifies  nothing,  and  not  a  moiety.  See  Wms. 
B.  P.  (136),  n.  2;  2  Bl.  Com.  (182)  n.  (5). 

§  149.  The  Right  of  Survivorship  Between  Joint  Tenants 
(jus  accrescendi) . — This  is  the  great  incident  of  joint  ten- 
ancy, and  grows,  as  we  have  seen,  out  of  the  doctrine  that 
joint  tenants  are  seised  per  my  et  per  tout.  By  it,  if  a  deed 
be  made  "to  A,  B  and  C,  and  their  heirs,"  if  C  dies  first, 
C's  heirs  get  nothing;  but  the  whole  interest  accrues  (accumu- 
lates or  concentrates)  upon  A  and  B.  If  now  B  dies  next,  B's 
heirs  get  nothing;  but  the  whole  interest  accrues  to  A  in 
severalty,  and,  on  A's  death  intestate,  descends  to  the  heirs 
of  A ;  so  though  the  gift  is  in  terms  "to  A,  B  and  C,  and 
their  heirs,"  only  the  survivor's  heirs  have  a  chance  of  in- 
heriting the  land.  To  this  right  of  survivorship  (formerly 
greatly  favored)  several  maxims  are  applicable. 

£  150.    Maxims  Applicable  to  Survivorship. 

(1).  Jus  accrescendi  pmfertur  ultimce  voluntati,  i.  e., 
survivorship  is  paramount  to  a  will  (ultima  voluntas),  by 
which  one  joint  tenant  (who  is  not  the  survivor)  endeavors 
to  dispose  of  his  share.  The  technical  reason  is  said  to  be 
that  on  the  joint  tenant's  death,  survivorship  takes  place 
per  mortem,  while  the  will  operates  post  mortem;  and  the 
per  precedes  the  post.  2  Bl.  Com.  (176)  n.  20.  The  real 
reason  would  seem  to  be  that  the  quality  of  survivorship 
is  annexed  to  the  estate  in  joint  tenancy  at  its  original 
creation,  and  so  must  take  effect  at  the  death  of  the  tenant 
unless  previously  defeated,  as  by  an  alienation  of  his  un- 
divided share  by  deed  in  his  lifetime.  Hence,  the  will  of 
the  joint  tenant  cannot  operate  on  his  share,  for  it  certainly 
does  not  precede  the  tenant's  death;  and,  therefore,  at  his 


§§  148-150]  CO-TENANTS.  179 

death  survivorship  takes  place  by  reason  of  the  original  in- 
herent quality  of  the  estate. 

(2).  Alienatio  rei  prwfertur  juri  accrescendi,  i.  e.,  an 
alienation  of  the  land  is  paramount  to  the  right  of  sur- 
vivorship. By  alienation  is  meant  a  conveyance  of  the  land 
itself,  as  distinguished  from  a  mere  charge  or  encumbrance 
put  upon  it.  (See  next  maxim.)  But  even  as  to  convey- 
ance, a  distinction  must  be  made.  For  while  every  imme- 
diate alienation  of  the  land  is  paramount  to  the  jus  accres- 
cendi  (even  a  lease  beginning  in  futuro),  yet  it  is  not  true 
that  every  alienation  severs  the  jointure;  for  survivorship 
may  take  place  subject  to  the  alienation  made.  Thus  if 
one  or  two  joint  tenants  in  fee-simple  conveys  his  share  to 
a  stranger  for  a  term  of  years,  this  is  no  severance  of  the 
jointure,  because  the  lessee  has  not  the  seisin;  and  on  the 
death  of  either  joint  tenant  survivorship  takes  place  in 
favor  of  the  other,  but  subject  to  the  lease.  The  lease, 
therefore,  did  not  destroy  the  jointure  or  prevent  survivor- 
ship, but  nevertheless  it  was  paramount  to  the  survivor- 
ship. 1  Tho.  Co.  (749),  (751)  ;  4  Com.  Dig.  Estates,  K  5, 
p.  Ill;  1  Lorn.  Dig.  617,  621.  But  see  Freeman,  Cot,  and 
Part.,  §  30,  where  it  is  said:  "A  demise  by  one  of  the  joint 
tenants  severs  the  joint  tenancy,  and  turns  it  into  a  tenancy 
in  common,  although  the  lease  is  not  to  commence  until 
after  the  lessor's  death,"  citing  Doe  v.  Read,  12  East  57; 
Eoe  v.  Lonsdale,  lb.  39;  Clerk  v.  Cleric,  2  Vera.  323;  Gould 
v.  Kemp,  2  Myl.  &  K.  310.  Again,  if  one  of  two  joint 
tenants  in  fee  conveys  his  undivided  interest  to  a  stranger 
for  life,  this  is  paramount  to  survivorship,  but  it  does  not 
necessarily  prevent  survivorship.  For  if  the  life  tenant 
should  die  in  the  lifetime  of  both  joint  tenants,  they  would 
again  be  jointly  seised  as  before  the  conveyance,  with  sur- 
vivorship on  the  death  of  either.  But  if  while  the  stranger 
lived,  and  the  life  estate  (and  the  seisin)  was  outstanding 
in  him,  either  joint  tenant  should  die,  there  could  be  no 
survivorship;   but  the   share   of   the   deceased  tenant  would 


180  REAL    PROPERTY.  [Chap.  9 

descend   to   his   own   heirs,   leaving  the   other   half   for   the 
other  tenant.    1  Tho.  Co.  (764)  ;  2  Min.  Ins.  479. 

(3).  Jus  accrescendi  prcefertur  oneribus,  i.  e.,  the  right  of 
survivorship  is  paramount  to  encumbrances.  See  2  Bl.  Com. 
(183),  n.  13.  This  maxim  is  essential  to  the  beneficial  exist- 
ence of  the  right  of  survivorship;  for  otherwise,  though  the 
survivor  received  the  title  to  the  land,  it  might  have  to  be 
sold  to  pay  the  deceased  tenant's  debts.  Hence,  when  sur- 
vivorship takes  place,  there  is  neither  dower  nor  curtesy 
in  the  deceased  tenant's,  share,  nor  is  the  land  bound  in 
the  hands  of  the  survivor  for  the  other's  debts,  even  though 
judgments  have  been  obtained  against  him  in  his  lifetime, 
nor  for  any  other  mere  charge  or  encumbrance  put  upon 
the  land  by  the  deceased  tenant.  But  a  mortgage  given 
to  secure  a  debt  by  the  deceased  tenant  has  been  held  a 
severance  of  the  jointure,  and  paramount  to  the  right  of 
survivorship,  as  amounting  to  a  disposition  of  the  land 
(alienatio  ret).  York  v.  Stone,  1  Salk.  158;  Simpson  v. 
Amnions,  1  Binney  (Pa.),  175  (2  Am.  Dec.  425);  Tied. 
E.  P.  238,  n.  5;  2  Bl.  Com.  (185),  n.  7;  Freeman,  Co-ten- 
ancy and  Partition,  §  30. 

II.  Tenants  by  Entireties. 

§  151.  Definition. — This  estate  is  to  be  carefully  distin- 
guished from  joint  tenancy,  which,  however,  it  greatly  re- 
sembles. Tenancy  by  entireties  arises  where  an  estate  in 
land  is  given,  after  marriage,  to  a  man  and  his  wife  jointly, 
who  would  be  joint  tenants  but  for  the  fact  that  the  husband 
and  wife  are  in  law  one  person;  "and  from  the  unity  of 
their  persons  by  marriage,  they  have  the  estate  entirely  as 
one  individual."  1  Prest.  Est.  131.  Hence  the  seisin  of 
the  husband  and  wife  in  such  a  case  is  said  to  be  per  tout 
et  non  per  mie;  i.  e.  by  all  and  not  by  nothing.  It  follows 
that  on  the  death  of  either  husband  or  wife,  survivorship 
takes  place  between  tenants  by  entireties.  During  the  cov- 
erture, however,  the  husband  has  the  control,  and  he  may 
convey  all  the  land  for  his  life;  but  he  cannot,  without  the 


§§  150-153]  CO-TENANTS.  181 

wife's  concurrence,  affect  the  inheritance,  even  as  to  one- 
half  of  the  land.  Unless  she  unites  in  the  deed,  the  ten- 
ancy by  entireties  continues,  and  the  survivor  gets  all  the 
land.  The  husband  has,  therefore,  less  power  to  dispose 
of  the  land  than  a  joint  tenant;  for  the  latter  can  always 
convey  his  undivided  interest.  But  if  a  man  and  woman 
are  joint  tenants  before  marriage,  they  remain  joint  ten- 
ants and  their  intermarriage  does  not  convert  them  into  ten- 
ants by  entireties.    2  Bl.  Com.  (182)  n.  10. 

§  152.    Abolition  of  Survivorship  Between  Joint  Tenants. 

— This  right  for  which  there  were,  as  we  have  seen,  sub- 
stantial feudal  reasons  has  been  abolished  generally  in  the 
United  States.  This  was  done  in  Virginia  as  to  joint  tenants, 
as  early  as  July  1st,  1787,  in  these  words:  "When  any  joint 
tenant  shall  die,  whether  the  estate  be  real  or  personal,  or 
whether  partition  could  have  been  compelled  or  not,  his 
part  shall  descend  to  his  heirs,  or  pass  by  devise,  or  go  to 
his  personal  representative,  subject  to  debts,  curtesy,  dower 
or  distribution,  as  if  he  had  been  a  tenant  in  common." 
See  1  Bev.  Code  (1819)  p.  359  (ch.  98,  §  2)  ;  Code  (1887) 
§  2430.  But  §  2431  provides  that  §  2430  shall  not  apply 
"to  an  estate  which  joint  tenants  have  as  executors  or 
trustees,  nor  to  an  estate  conveyed  or  devised  to  persons  in 
their  own  right,  when  it  manifestly  appears,  from  the  tenor 
of  the  instrument,  that  it  was  intended  that  the  part  of  the 
one  dying  should  then  belong  to  the  others.  Neither  shall 
it  affect  the  mode  of  proceeding  on  any  joint  judgment  or 
decree  in  favor  of,  or  on  any  contract  with  two  or  more, 
one  of  whom  dies."  And  to  abolish  survivorship  between 
joint  tenants  does  not  abolish  joint  tenancy  which  still  con- 
tinues with  its  other  incidents.  See  Patton  v.  Hoge,  22  Grat. 
443. 

§  153.  Abolition  of  Survivorship  Between  Tenants  by  En- 
tireties.— We  have  seen  that  at  common  law  survivorship  is 
an  incident  common  to  joint  tenancy  and  to  tenancy  by 
entireties.     But  while  this  is  so,  the  two  estates  are  by  no 


182  REAL    PROPERTY.  [Chap.  9 

means  identical,  and  it  is  held  that  a  statute  abolishing  sur- 
vivorship between  joint  tenants  does  not  apply  to  tenants  by 
entireties,  who  are  not  joint  tenants,  though  occupying  a  some- 
what similar  relation.  We  have  seen  that  in  Virginia,  as 
between  joint  tenants,  survivorship  was  abolished  as  early  as 
July  1,  1787;  but  this  act  was  held  to  have  no  application 
to  tenants  by  entireties.  See  Thornton  v.  Thornton,  3  Rand. 
(Ya.)  179;  Norman  v.  Cunningham,  5  Grat.  63.  And  sur- 
vivorship between  tenants  by  entireties  continued  in  Vir- 
ginia, as  at  common  law,  until  July  1,  1850,  when  it  was 
partially  abolished.  See  Code  (1849)  ch.  116,  §  18,  enact- 
ing as  follows :  "And  if  hereafter  an  estate  of  inheritance  be 
conveyed  or  devised  to  a  husband  and  his  wife,  one  moiety  of 
such  estate  shall,  on  the  death  of  either,  descend  to  his  or  her 
heirs,  subject  to  debts,  curtesy,  or  dower,  as  the  case  may  be." 
It  will  be  seen  that  the  above  statute  is  confined  to  estates 
of  inheritance  in  lands.  But  by  Code  (1887),  taking  effect 
Ma}^  1,  1888,  tenancy  by  entireties  is  itself  abolished,  except 
where  the  deed  or  will  manifests  an  intent  that  it  shall 
continue.  2  Min.  Ins.  (4th  ed.)  471.  For  §  2430  enacts: 
"And  if  hereafter  any  estate,  real  or  personal,  be  conveyed  or 
devised  to  a  husband  and  his  wife,  they  shall  take  and  hold 
the  same  by  moieties,  in  like  manner  as  if  a  distinct  moiety 
had  been  given  to  each  by  a  separate  conveyance."  •  But 
§  2431  declares  that  this  shall  not  apply  "when  it  appears 
from  the  tenor  of  the  instrument  that  it  was  intended  the 
part  of  the  one  dying  should  then  belong  to  the  others."1 

1  Tenancy  by  Entireties. — It  has  usually  been  held  that  the 
Married  Woman's  Acts,  making  the  property  of  the  wife  her  legal 
separate  estate,  do  not  affect  the  creation  of  a  tenancy  by  en- 
tireties upon  a  devise  or  grant  of  land  to  a  husband  and  his  wife. 
See  51  Am.  St.  R.,  372,  note.  But  the  Virginia  statute  above  cited, 
Code  §  2430,  undoubtedly  abolishes  tenancy  by  entireties,  turn- 
ing it  into  a  tenancy  in  common,  by  declaring  that  husband  and 
wife  shall  "take  and  hold"  the  estate  conveyed  or  devised  by 
moieties  "in  like  manner  as  if  a  distinct  moiety  had  been  given 
to  each  by  a  separate  conveyance.''     And  Prof.   Minor   says    (2 


§§153,154]  CO-TENANTS.  183 

§  154.  Zollman  v.  Moore. — The  importance  of  distinguish- 
ing tenants  by  entireties  from  joint  tenants,  and  of  bear- 
ing in  mind  the  different  dates  at  which  survivorship  was 
abolished  between  them,  is  shown  by  the  case  of  Zollman 
v.  Moore,  21  Grat.  313.  In  this  case,  the  father  of  the  wife, 
by  a  deed  of  gift  made  in  1827,  conveyed  the  land  to  B  and 
F  (husband  and  wife)  and  their  heirs.  B  died  in  1863, 
leaving  F  surviving  him.  F  was  advised  by  counsel  that 
she  was  entitled  to  only  one-half  of  the  land,  and  that  the 
other  half  descended  to  B's  heirs;  and  so  consented  to  a 
sale  of  the  land,  and  a  division  of  the  purchase-money  be- 
tween herself  and  her  children.  The  land  was  sold  to 
Zollman  in  1863,  and  paid  for  in  Confederate  money.  After 
the  war,  F  filed  a  bill  to  set  aside  the  sale  to  Zollman, 
she  being  then  advised  that,  on  the  death  of  B,  she  was 
entitled  to   the  whole   land,   instead   of  to  one-half  merely. 

Minn.  Ins.,  477):  "It  would  seem  that  now,  under  the  Code  of 
1887,  in  case  of  tenancy  by  entireties,  the  parties  may  separately 
aliene  their  respective  shares."  A  question  might  possibly  be 
raised,  however,  as  to  whether  tenancy  by  entireties  is  embraced 
by  the  exception  in  §  2431,  declaring  that  §  2430  shall  not  apply 
"to  an  estate  conveyed  or  devised  to  persons  in  their  own  right, 
when  it  manifestly  appears,  from  the  tenor  of  the  instrument, 
that  it  was  intended  that  the  part  of  the  one  dying  should  then 
belong  to  the  others." 

In  Hunt  v.  Blackburn,  128  U.  S.  464,  it  is  said  by  Fuller,  C.  J.: 
"Undoubtedly,  at  common  law  husband  and  wife  did  not  take, 
under  a  conveyance  of  land  to  them  jointly,  as  tenants  in  com- 
mon or  joint  tenants,  but  each  became  seised  of  the  entirety, 
per  tout  et  non  per  my:  the  consequence  of  which  was,  that 
neither  could  dispose  of  any  part  without  the  assent  of  the  other, 
but  the  whole  remained  to  the  survivor  under  the  original  grant. 
.  .  .  But  it  was  also  true  at  common  law  that  as,  "in  point 
of  fact,  and  agreeable  to  natural  reason,  free  from  artificial  de- 
ductions, the  husband  and  wife  are  distinct  and  individual  per- 
sons, .  .  .  where  lands  are  granted  to  them  as  tenants  in 
common,  thereby  treating  them  without  any  respect  to  their  so- 
cial union,  they  will  hold  by  moieties,  as  other  distinct  and  indi- 
vidual persons  would  do.'  " 


184  REAL    PROPERTY.  [Chap.  9 

The  bill  was  dismissed  on  the  ground  that  a  mistake  of  law 
will  not  be  relieved  against,  certainly  not  as  against  a  bona 
fide  purchaser  for  value;  and  so  F  lost  her  land.  Here 
P  was  clearly  entitled  to  the  whole  land,  and  the  advice 
of  her  lawyer  was  plainly  erroneous.  For  B  and  F  were 
not  joint  tenants,  but  tenants  by  entireties,  and  so  survivor- 
ship as  between  them  was  not  abolished  by  the  statute  taking 
effect  July  1,  1787,  which  applied  to  joint  tenants  only. 
And  as  to  the  statute  taking  effect  July  1,  1850,  which  did 
abolish  survivorship  between  tenants  by  entireties  of  estates 
of  inheritance,  this  had  no  application,  not  being  retrospective, 
to  a  deed  made  in  1827.  If  the  deed  had  been  made  after 
July  1,  1850,  then  F  would  have  been  entitled  to  one-half 
only  of  the  land,  and  the  other  half  would  have  descended  to 
B's  heirs,  subject,  however,  to  a  right  of  dower  in  favor  of 
F.  The  mistake  of  counsel  may  have  been  caused  (1)  By 
not  distinguishing  between  joint  tenancy,  and  tenancy  by 
entireties;  or  (2)  By  not  adverting  to  the  fact  that  survivor- 
ship between  tenants  by  entireties  continued  until  July  1, 
1850,  in  Virginia;  or  (3)  By  not  examining  the  date  of  the 
deed,  and  supposing  it  was  after  July  1,  1850,  or  (4)  By  sup- 
posing that  the  act  of  July  1,  1850,  was  retrospective.  But 
however  occasioned,  the  result  was  the  same,  and  the  widow 
lost  her  land. 

III.  Tenants  in  Common. 

§  155.  Nature  of  Tenancy  in  Common. — Tenants  in  com- 
mon need  have  no  unity  but  unity  of  possession,  and  that 
only  in  the  sense  of  holding  together,  and  not  in  severalty. 
2  Bl.  Com.  (192);  Carried  v.  Lynch,  91  Va.  114.  They 
differ  widely  from  joint  tenants  in  the  nature  of  their  seisin, 
which  is  not  joint,  but  several.  Each  has  seisin  only  of  his 
part;  and  though  that  part  is  not  in  fact  separate  from 
the  residue,  yet  in  legal  idea  it  is  separate.  Hence  the  mode 
of  conveyance  by  one  tenant  in  common  to  another  is  by 
livery  of  seisin,  which  each  can  make  of  his  own  part;  where- 


§§  154-156]  CO-TENANTS.  185 

as  joint  tenants  must  release  the  one  to  the  other,  as  we  have 
seen.  As  to  suits  by  tenants  in  common  at  common  law,  see 
1  Tho.  Coke,  777-782;  Olarkson  v.  Booth,  17  Grat.  490.  By 
Code  Ya.  §  3256 :  "Tenants  in  common  may  join  or  be  joined 
as  plaintiffs  or  defendants."  At  common  law  joint  tenants 
must  join  and  be  joined.1 

IV.     Coparceners. 

§  156.  Nature  of  Coparcenary. — Coparceners  are  those 
who  have  become  entitled  by  descent  as  co-heirs.     2  Bl.  Com. 

1  Creation  of  Tenancy  in  Common.— See  2  Bl.  Com.  (Sharsw. 
ed.)  (180),  n.  3,  (192),  n.  25,  where  it  is  said  that  in  wills,  the 
expressions  "equally  to  be  divided,"  "share  and  share  alike,"  "re- 
spectively between  and  amongst,"  have  been  held  to  create  a 
tenancy  in  common.  And  this  is  now  true  of  these  and  similar 
expressions,  not  only  in  wills  but  also  in  deeds.  2  Min.  Ins.  (4th 
ed.),  467,  496;  Freeman,  Cot.  &  Part.,  §§  23,  25;  Skipwith  v.  Cabell, 
19  Grat.  758,  787. 

It  is  highly  important  to  decide,  as  to  legacies  or  devises  given 
to  two  or  more  by  will,  whether  they  take  as  joint  tenants  or 
tenants  in  common,  in  order  to  determine  the  effect  of  the  death 
of  one  or  more  of  the  co-tenants  in  the  lifetime  of  the  testator. 
If  they  are  tenants  in  common,  each  has  a  separate  interest,  and 
the  death  of  any  one  before  the  testator  causes  a  lapse  of  his 
share  at  common  law  (1  Jarman,  Wills  (340);  Freeman,  Cot. 
&  Part.  §  109),  which  now  in  Virginia,  by  C.  V.  §  2523,  would  pass 
to  such  tenant's  issue,  if  he  leaves  issue  who  survive  the  testator. 
But  it  is  otherwise  if  they  are  joint  tenants.  In  Jarman  on 
Wills,  p.  340,  the  law  is  thus  stated:  "Where  there  is  a  devise  or 
bequest  to  a  plurality  of  persons  as  joint  tenants  (i.  e.,  who  are 
not  made  tenants  in  common),  no  lapse  can  occur  unless  all  the 
objects  die  in  the  testator's  lifetime;  because  as  joint  tenants  take 
per  my  et  per  tout,  or,  as  it  has  been  expressed,  'each  is  a  taker 
of  the  whole,  but  not  wholly  and  solely,'  any  one  of  them  existing 
when  the  will  takes  effect  will  be  entitled  to  the  entire  property. 
Thus,  if  real  estate  be  devised  to  A  and  B,  or  personal  property 
be  bequeathed  to  A  and  B,  and  A  die  in  the  testator's  lifetime, 
B,  in  the  event  of  his  surviving  the  testator,  will  take  the  whole." 
See  also  1  Jarman,  Wills  (353);  3  Lorn.  Dig.  (112);  Freem.  Cot. 
&  Part.  §  28;  2  Min.  Ins.  (4th  ed.),  1049. 

Is   the   doctrine   above    stated    affected    by    Code    Va.    §    2430, 


186  REAL    PROPERTY.  [Chap.  9 

(187).  Hence,  only  estates  of  inheritance  can  be  held  by 
tenants  in  coparcenary ;  whereas  not  only  estates  in  fee  simple 
or  fee  tail,  but  also  for  life  or  for  years  may  be  held  in  joint 
tenancy  and  in  tenancy  in  common.  The  seisin  of  copar- 
ceners is  to  some  extent  joint,  and  to  some  extent  several. 
Hence,  one  parcener  may  convey  to  another  either  by  feoff- 
ment or  by  release.  It  must  also  be  observed  that  joint  ten- 
ants and  tenants  in  common  always  take  by  purchase,  i.  e.,  by 
act  and  agreement  of  the  parties ;  and  in  this  they  both  differ 
from  parceners  who  take  by  descent,  i.  e.,  by  operation  of  law. 
It  follows  from  this  that  in  several  respects  the  law  as  to  joint 
tenants  and  tenants  in  common  is  the  same,  while  a  different 
rule  prevails  as  to  coparceners.1 

abolishing  survivorship  between  joint  tenants.  It  seems  not.  On 
the  ground  that  the  surviving  joint  tenant  does  not  take  the 
whole  by  survivorship  from  the  other  joint  tenant  (as  the  estate 
was  never  vested  in  both  by  the  death  of  the  testator),  but  he 
takes  by  the  devise  or  bequest  of  the~  testator,  whose  intention 
it  is,  as  shown  by  uniting  their  names,  and  making  them  potential 
joint  tenants,  that  if  the  number  of  takers  shall  be  lessened  by 
death  or  otherwise  (as  if  some,  though  living  at  the  testator's 
death,  cannot  or  will  not  take),  the  whole  shall  pass  to  the  other, 
or  others.     See  Freeman,  §  28;  2  Min.  Ins.  1049. 

1  Privity  Between  Co-tenants. — In  Turner  v.  Sawyer,  150  U. 
S.  578,  586,  it  is  said:  "It  is  well  settled  that  co-tenants  stand 
in  a  certain  relation  to  each  other  of  mutual  trust  and  confidence; 
that  neither  will  be  permitted  to  act  in  hostility  to  the  other  in 
reference  to  the  joint  estate,  and  that  a  distinct  title  acquired  by 
one  will  enure  to  the  benefit  of  all.  .  .  .  We  think  the  gen- 
eral rule  as  stated  in  Bissell  v.  Foss,  114  TJ.  S.  252,  259,  should 
apply;  that  'such  a  purchase'  (of  an  outstanding  title  or  encum- 
brance upon  the  joint  estate  for  the  benefit  of  one  tenant  in  com- 
mon) 'enures  to  the  benefit  of  all,  because  there  is  an  obligation 
between  them,  arising  from  their  joint  claim  and  community  of 
interest,  that  one  of  them  shall  not  affect  the  claim  to  the  preju- 
dice of  the  others.'  "  See  Pilloiv  v.  Southwest  Imp.  Co.,  92  Va. 
144;  Battin  v.  Woods,  27  W.  Va.  58;  Gilchrist  v.  Beswick,  33  Id. 
168.  And  see  the  same  doctrine  laid  down  in  Freeman,  Cot.  & 
Part.,  §  154.  But  in  §  155  it  is  stated  that  the  rule  is  not  al- 
ways applicable  to  tenants  in  common.     "Joint  tenants,  tenants 


§§  156-158]  CO-TENANTS.  187 

Let  ns  now  consider,  as  to  the  several  kinds  of  co-tenants, 
trespass,  waste,  account  and  partition. 

§  157.  Trespass. — As  a  general  rule,  one  co-tenant  cannot 
be  guilty  of  trespass  against  the  other,  because  the  possession 
is  undivided,  and  each  tenant  has  a  right  to  enter  upon  any 
part  of  the  land.  But  if  the  act  of  one  co-tenant  amounts  to 
the  destruction  of  the  property,  or  to  the  ouster  of  his  com- 
panion, then  an  action  of  trespass  will  lie  against  him.  Free- 
man on  Cot.  and  Part.,  §§  298-302;  Bigelow  on  Torts,  171; 
Stonestreet  v.  Doyle,  75  Va.  356.  As  to  ejectment  for  the 
ouster  of  one  co-tenant  by  another,  see  50  Am.  St.  E.  843-45, 
note. 

§  158.  Waste. — No  tenant  at  common  law  is  liable  for 
waste  to  his  co-tenant.  The  statute  of  13  Ed.  I.,  chap.  22, 
made  joint  tenants  and  tenants  in  common  responsible  for 
waste,  but  it  did  not  extend  to  coparceners,  on  the  ground 
that  as  they  could  compel  partition,  they  could  thus  save 
themselves  from  injury.  2  Bl.  Com.  (194).  In  Virginia, 
however,  it  is  enacted  (Code,  §  2776)  :     "If  a  tenant  in  com- 

by  entirety,  and  coparceners,"  it  is  said,  "always  hold  by  and 
under  the  same  title.  Their  union  of  interest  and  of  title  is  so 
complete  that,  beyond  all  doubt,  such  a  relation  of  trust  and  confi- 
dence unavoidably  results  therefrom  that  neither  will  be  per- 
mitted to  act  in  hostility  co  the  interests  of  the  other  in  refer- 
ence to  the  joint  estate.  Tenants  in  common,  on  the  other  hand, 
may  claim  under  separate  conveyances,  and  through  different 
grantors.  Their  only  unity  is  that  of  right  to  the  possession  of 
the  common  subject  of  ownersnip.  .  .  .  But  an  examination 
of  the  decisions  clearly  shows  that  tenants  in  common  are  not 
necessarily  prohibited  from  asserting  an  adverse  title.  If  their 
interests  accrue  at  different  times,  and  under  different  instru- 
ments, and  neither  has  superior  means  of  information  respecting 
the  state  of  the  title,  then  either,  unless  he  employs  his  co-ten- 
ancy to  secure  an  advantage,  may  acquire  and  assert  a  superior 
outstanding  title,  especially  where  the  co-tenants  are  not  in  joint 
possession  of  the  premises."  And  see  this  exception  as  to  ten- 
ants in  common,  under  some  circumstances,  recognized  in  Turner 
v.  Sawyer,  150  U.  S.  576;  but  it  was  held  inapplicable  in  that  case. 


188  REAL    PROPERTY.  [Chap.  9 

mon,  joint  tenant,  or  parcener  commit  waste,  he  shall  be  liable 
to  his  co-tenants  jointly  or  severally  for  damages. 

§  159.  Account. — At  common  law,  although  one  co-tenant 
took  the  whole  profits,  no  action  of  account  lay  against  him, 
unless  the  receiving  co-tenant  had  been  made  their  bailiff  by 
his  companions.  See  2  Bl.  Com.  (183-'84) ;  1  Tho.  Coke 
(787).  But  to  remedy  this  defect  of  the  common  law,  the 
statute  of  4  and  5  Anne,  ch.  16,  gave  an  action  of  account  in 
favor  of  one  joint  tenant  or  tenant  in  common  against  another 
"for  receiving  more  than  comes  to  his  just  share  and  propor- 
tion." And  the  Va.  Code,  §  3294,  is  to  the  same  effect.  But 
neither  the  English  nor  the  Virginia  statute  mentions  copar- 
ceners; the  action  of  account  is  given  to  joint  tenants  and  ten- 
ants in  common  only.  But  equity  has  always  entertained  a 
bill  for  account  by  one  coparcener  against  another;  and  such 
bill  may  also  be  filed  by  a  joint  tenant  or  tenant  in  common. 
Early  v.  Friend,  16  Grat.  21 ;  2  Min.  Ins.  (4th  ed.),  506.1 

1  Accounting  by  Parceners. — In  Fry  v.  Payne,  82  Va.,  759, 
it  is  assumed,  without  discussion,  that  Code  of  Va.,  §  3294,  giv- 
ing an  action  on  account  to  join  tenants  and  tenants  in  common, 
extends  to  parceners.  But  in  Ward  v.  Ward,  40  W.  Va.,  611  (52 
Am.  St.  R.,  911),  there  is  an  elaborate  examination  of  the  ques- 
tion, and  the  conclusion  is  reached  that  the  West  Virginia  Statute 
(same  as  that  in  Virginia)  does  not  embrace  parceners,  and  that 
they  cannot,  even  in  equity,  demand  an  account  of  use  and  occu- 
pation; the  reasoning  of  Prof.  Minor  (2  Min.  Ins.,  506)  being  dis- 
approved. But  in  note  to  Ward  v.  Ward  (52  Am.  St.  R.),  930,  it 
is  said:  "No  opinion  other  than  that  in  the  principal  case,  has, 
so  far  as  we  can  ascertain,  considered  whether  the  statute  of 
Anne  and  similar  enactments  apply  to  parceners.  It  is  true  that 
they  are  not  mentioned  in  the  statute,  but  the  wrongs  it  was  in- 
tended to  redress  apply  to  them  as  well  as  to  other  co-owners, 
and  we  should  be  much  surprised  at  a  decision  holding  that  a  co- 
parcener receiving  the  entire  rents  of  the  common  property  was 
under  no  obligation  to  account  therefor;  and  yet  the  liability  to 
account  for  rents  received,  where  the  one  party  has  not  collected 
them  as  bailiff  or  agent  of  the  other,  is  dependent  on  the  statute." 
See  also  Ward  and  Ward,  and  note  thereto  (52  Am.  St.  Rep.  934- 
941),  for  a  discussion  of  the  subject  of  the  liability  of  one  co- 


§§  158-161]  CO-TENANTS.  189 

§  160.  Receiving  More  than  Comes  to  His  Just  Share  and 
Proportion. — These  words  occur  in  the  English  statute  giv- 
ing to  joint  tenants  and  tenants  in  common  a  right  to  bring 
action  of  account.  A  question  arose  in  England  in  Henderson 
v.  Bason,  79  E.  C.  L.  E.,  701,  as  to  the  meaning  of  "receiv- 
ing," and  it  was  held  that  the  co-tenant  was  bound  to  account 
when  he  receives  money  or  something  else  which  a  third  per- 
son gives  or  pays  for  the  use  of  the  common  property,  and  of 
which  such  tenant  retains  more  than  his  just  share  or  propor- 
tion ;  and  that  the  statute  does  not  render  a  co-tenant  account- 
able who  occupies  a  house  owned  in  common,  or  who  occupies 
and  cultivates  the  common  land;  as  such  tenant  merely  oc- 
cupies and  enjoys,  taking  the  profits  to  himself,  but  not  receiv- 
ing them  from  a  third  person.  The  result  is  that  one  co- 
tenant  cannot,  under  the  statute,  any  more  than  at  common 
law,  keep  out  of  the  possession,  and  make  the  other  who  occu- 
pies accountable  to  him.  But  if  neither  occupies,  and  one  re- 
ceives from  a  third  person  in  possession  more  than  comes  to  his 
just  share  and  proportion,  the  one  receiving  must  account  to 
the  other  for  the  other's  share.  And  this  construction  of  "re- 
ceiving" is  followed  in  many  of  the  American  States.  See  52 
Am.  St.  E.,  924-934,  where  all  the  cases  are  collected,  and  a 
preference  is  expressed  for  the  English  rule,  except  when  the 
occupying  tenant  has  been  guilty  of  the  ouster  of  his  fellow 
tenant. 

§  161.  Receiving  More  than  His  Just  Share  and  Propor- 
tion in  Virginia. — The  statute  of  Anne  containing  these 
words  was  re-enacted  in  Virginia  before  the  decision  of  Hen- 
derson v.  Eason,  supra,  which  decision  was,  therefore,  not 

tenant  to  another  for  expenditures  made  upon  their  common  prop- 
erty. It  is  there  said:  "For  expenditures  made  upon  the  com- 
mon property,  we  doubt  whether  there  is  any  instance  in  which 
one  co-tenant  can  be  held  personally  answerable  to  another,  in 
the  absence  of  an  agreement,  either  made  in  direct  terms,  or 
implied  from  the  conduct  of  the  parties,  and  the  attendant  cir- 
cumstances." 


190  REAL    PROPERTY.  [Chap.  9 

binding  on  the  Virginia  court.  See  Parramore  v.  Taylor,  11 
Grat.  220.  The  question  as  to  what  is  meant  by  "receiving" 
arose  in  Virginia  in  Early  v.  Friend,  16  Grat.,  21,  and  the 
court  declined  to  follow  Henderson  v.  Eason,  and  construed 
the  word  "receiving"  as  follows :  "Whenever  the  nature  of  the 
property  is  such  as  not  to  admit  of  its  use  and  occupation  by 
several,  and  it  is  held  and  occupied  by  one  only  of  the  tenants 
in  common,  or  whenever  the  property,  though  capable  of  use 
and  occupation  by  several,  is  yet  so  used  and  occupied  by  one 
as  to  exclude  the  others,  he  receives  'more  than  his  just  share 
and  proportion,'  in  the  meaning  of  the  statute,  and  is  account- 
able to  the  others."  And  the  same  construction  is  adopted  in 
West  Virginia  and  many  other  states.  Ward  v.  Ward,  (W. 
Va.),  52  Am.  St.  E.,  911,  and  monographic  note;  McGahan 
V.  Bank,  156  IT.  S.,  218,  236,  a  case  arising  under  the  law  of 
South  Carolina. 

But  even  under  the  Virginia  rule  it  is  possible  for  one  co- 
tenant  to  receive  profits  from  the  common  property  without 
being  liable  to  account  to  the  others.  For  such  tenant  has  a 
right  to  occupy  the  common  property,  though  not  to  the  ex- 
clusion of  the  others.  But  the  occupation  of  one  does  not 
necessarily  exclude  the  others;  and  when  it  does  not  exclude 
them,  they  cannot,  by  voluntarily  remaining  out  of  possession, 
hold  him  responsible.  Thus,  if  there  are  two  houses  of  equal 
value,  and  one  of  two  co-tenants  occupies  one  house,  leaving 
the  other  to  his  companion ;  or  if  there  should  be  large  estates 
or  extensive  mines  held  in  common,  and  one  cultivates  or 
mines  a  part  of  the  property  only;  in  neither  of  these  cases 
would  the  occupying  tenant  be  accountable  to  the  other.  But 
if  there  were  but  one  small  house,  and  one  tenant  occupied  it 
all  with  his  wife  and  children ;  or  if  there  should  be  a  hotel  or 
furnace;  the  occupation  by  one  would  be  in  its  nature  exclu- 
sive, and  he  would  be  held  to  account  to  the  other  or  others. 
As  to  the  mode  of  accounting,  whether  for  actual  profits  less 
expenses,  or  for  an  annual  rent,  see  Ruffners  v.  Lewis,  7  Leigh, 
720;  Graham  v.  Pierce,  19  Grat.,  28;  Newman  v.  Newman,  27 


§§  161-162]  CO-TENANTS.  191 

Grat,  714;  White  v.  Stuart,  76  Va.,  546;  Fry  v.  Payne,  82 
Va.,  759;  Dodson  v.  Hays,  29  W.  Va.,  578;  52  Am.  St.  R., 
931,  934. 

§  162.  Partition. — Parceners  only  at  common  law  could 
compel  partition;  but  joint  tenants  and  tenants  in  common 
could  not  do  so  until  the  statute  of  31  Henry  VIII.  The 
reason  of  this  diversity  at  common  law  was  that  as  parceners 
held  together  by  operation  of  law  (i.e.,  by  descent  as  co-heirs), 
it  would  have  been  unjust  to  compel  any  one  of  them  to  so  hold 
against  her  will  (parceners  at  common  law  were  females 
only) ;  but  as  joint  tenants  and  tenants  in  common  became  so 
by  their  own  act  (or,  at  least,  acceptance) ,  the  law  would  not 
allow  a  relation  entered  into  by  mutual  consent  to  be  termi- 
nated except  by  mutual  consent.  Holdiug  in  severalty,  how- 
ever, is  so  much  more  beneficial  to  all  parties  that  it  is  now  the 
policy  of  all  legislation  to  encourage  and  facilitate  partition. 
And  by  Code  Va.,  §  2562,  amended  by  Acts,  1897-'98,  c.  452, 
p.  488 :  "Tenants  in  common,  joint  tenants,  and  coparceners 
shall  be  compelled  to  make  partition;  and  a  lien  creditor  or 
[of]  any  owner  of  undivided  estate  in  real  estate  may  also 
compel  partition  for  the  purpose  of  subjecting  the  estate  of 
his  debtor,  or  the  rents  and  profits  thereof,  to  the  satisfaction 
of  his  lien.  Any  court  having  general  equity  jurisdiction  of 
the  county  or  corporation  wherein  the  estate  or  any  part  there- 
of is,  shall  have  jurisdiction  in  cases  of  partition ;  and  in  the 
exercise  of  such  jurisdiction  may  take  cognizance  of  all  ques- 
tions of  law  affecting  the  legal  title  that  may  arise  in  any 
proceedings."  As  to  the  right  of  a  lien  creditor  to  compel 
partition,  the  statute  settles  a  doubt.  See  2  Va.  Law  Eeg., 
423.  That  the  provision  of  the  statute  giving  to  a  court  of 
equity  in  a  suit  for  partition  authority  to  take  "cognizance  of 
all  questions  of  law  affecting  the  legal  title"  is  constitutional, 
see  Pillow  v.  Southwest  Improvement  Co.,  92  Va.,  114.  For 
an  instance  of  the  exercise  of  this  jurisdiction,  see  Bradley  v. 
Zehmer,  82  Va.,  685.  See  also  Moore  v.  Harper,  27  W.  Va., 
362;  Hinton  v.  Bland,  81  Va.,  588.     That  a  Virginia  court 


192  REAL    PROPERTY.  [Chap.  9 

has  no  jurisdiction  to  decree  partition  of  land  lying  in  another 
state,  see  Wimer  v.  Winter,  82  Va.,  890 ;  Pillow  v.  Southwest 
Improvement  Co.,  92  Va.,  144;  1  Va.  Law  Reg.,  673,  note  by 
Judge  Burks. 

§  163.  Partition  in  Equity. — The  mode  is  for  the  court  to 
appoint  commissioners  who  enter  on  and  survey  the  estate,  and 
make  a  return  to  the  court.  The  return,  if  satisfactory,  is 
confirmed  by  the  court.  The  confirmation,  however,  did  not, 
like  a  judgment  on  the  common  law  writ  of  partition — "that 
the  partition  remain  firm  and  stable  forever"— operate  on  the 
legal  title  to  the  land  so  as  to  divest  the  parties  of  their  undi- 
vided shares,  and  invest  them  with  their  respective  allotments. 
Gay  v.  Pai-part,  106  U.  S.  679,  691 ;  Langdell  Eq.  PL  (2d 
ed.),  §  43,  n.  4.  The  partition,  therefore,  required  to  be  per- 
fected by  mutual  conveyances  made  by  the  co-tenants  in  pur- 
suance of  the  decree.  See  Boiling  v.  Teel,  76  Va.  487;  Bis- 
pham's  Eq.,  §§  490-493;  Freeman,  Cot.  and  Part.,  §  396, 
§  427.  But  to  avoid  the  necessity  for  mutual  conveyances, 
the  Code  of  Va.,  §  2565  enacts:  "A  decree  heretofore  or  here- 
after made,  confirming  any  partition  or  allotment  in  a  suit  for 
partition,  shall  vest  in  the  respective  parties,  between  or  to 
whom  the  partition  or  allotment  is  made,  the  title  to  their 
shares  under  the  partition,  in  like  manner  and  to  the  same 
extent  as  if  the  said  decree  ordered  such  title  to  be  conveyed 
to  them,  and  the  conveyance  was  made  accordingly."1 

Procedure  on  Partition. — In  Brooks  v.  Hubble  (Va.),  27  S. 
E.  585,  it  is  said:  "It  seems  to  be  well  settled  that  by  the  com- 
mon law  coparceners  could  make  partition  of  their  land  by  parol 
as  well  as  by  deed;  and  that  this  was  the  law  in  this  State  until 
changed  by  §  2413  of  the  Code  of  1887.  Jones'  Devisees  v.  Carter, 
4  Hen.  &  M.  190;  Boiling  v.  Teel,  76  Va.  487;  Yancey  v.  Radford, 
86  Va.  638;  1  Lorn.  Dig.  494,  and  2  Min.  Inst.  439."  By  §  2413 
of  Code  Va.,  it  is  declared  that  no  voluntary  partition  of  land 
by  coparceners  shall  be  made  except  by  deed. 

As  to  who  may  maintain  suit  for  partition,  it  is  said  in  Carneal 
v.  Lynch,  91  Va.  114,  119:  "We  are,  therefore,  of  opinion  that  un- 
der the  statutes  of  Virginia  [C.  V.,  §§  2432,  2562],  as  well  as  upon 


§§  162-164]  CO-TENANTS.  193 

§  164.  Sale,  Instead  of  Partition  in  Kind. — It  was  for- 
merly held,  even  in  equity,  that  the  difficulty  of  making  parti- 
tion in  kind  was  not  sufficient  to  justify  the  court  in  refusing 
to  make  it,  and  that  if  the  parties  did  not  agree  to  waive  par- 
tition in  kind,  it  was  an  absolute  right,  though  the  result 
might  divide  a  single  house  or  mill  between  two  or  more.     The 

precedent,  a  tenant  for  life  in  one  moiety  of  property  may  main- 
tain a  suit  against  those  who  own  the  estate  in  remainder  of  the 
said  moiety,  whether  in  esse  or  not,  and  the  fee-simple  owners  of 
the  other  half,  and  compel  partition  of  said  property;  and  if  not 
susceptible  of  partition  in  kind,  may  have  a  sale  and  division  of 
the  proceeds." 

As  to  owelty  (equality)  of  partition,  see  Freeman,  Cot.  and 
Part.,  §  507,  where  it  is  thus  denned:  "When  an  equal  partition 
cannot  be  otherwise  made,  courts  of  equity  may  order  that  a  cer- 
tain sum  be  paid  by  the  party  to  whom  the  most  valuable  prop- 
erty has  been  assigned.  The  sum  thus  directed  to  be  paid  to  make 
the  partition  equal  is  called  owelty."  For  an  example  of  owelty, 
see  Jameson  v.  Rixey  (Va.),  26  S.  E.  861,  where  it  is  said:  "A 
lien  for  owelty  of  partition  partakes  of  the  nature  of  a  vendor's 
lien,  and  constitutes  a  prior  encumbrance  upon  the  land  on  which 
it  is  charged,  and  follows  the  land  into  whosesoever  hands  it 
may  come."  And  see  Martin  v.  Martin  (Va.),  27  S.  E.  810,  where 
it  is  held  that  in  partitioning  lands  which  are  incapable  of  exact 
or  fair  division,  a  court  of  equity  has  power  to  charge  one  portion 
with  an  easement  in  favor  of  another  portion,  to  make  the  parti- 
tion equitable. 

As  to  improvements  put  by  one  co-tenant  on  the  common  prop- 
erty, it  is  held  in  Ballc-u  v.  Ballou  (Va.),  26  S.  E.  840,  that  when 
a  co-tenant  has  improved  the  property  at  his  own  expense,  equity 
will  not  grant  partition  without  directing  an  account  and  suit- 
able compensation  for  the  improvements.  And  it  is  not  necessary 
for  the  improving  tenant  to  show  the  assent  of  his  co-tenants  to 
such  improvements,  nor  a  promise  on  their  part  to  contribute 
their  share  of  the  expense,  nor  a  request  by  him  to  join  in  the 
improvements,  and  their  refusal.  But  this  is  an  equity  which 
arises  in  the  suit  for  partition.  No  action  of  assumpsit  can  be 
brought  under  the  above  circumstances  to  recover  any  part  of 
the  cost  of  the  improvements  from  the  other  tenants.  See  Free- 
man, Cot.  and  Part.,  §  510;  Ward  v.  Ward  (W.  Va.),  52  Am.  St. 
R.  911,  and  938-941,  note. 

13 


194  REAL    PROPERTY.  [Chap.  9 

court  could  not  order  a  sale  and  a  division  of  the  proceeds. 
The  doctrine  of  partition  in  kind,  as  has  been  well  said,  was 
applied  "disastrously  to  the  interests  of  all  parties,  but  in 
magnanimous  vindication  of  their  rights."  2  Minor's  Ins. 
421.  But  now  in  England,  by  statute,  a  court  of  equity  may 
order  a  sale  of  property  instead  of  partition.  31  and  32  Vict, 
ch.  40.  And  this  is  now  the  law  in  the  United  States  gener- 
ally. By  Code  Va.  §  2563 :  "Any  two  or  more  of  the  parties, 
if  they  so  elect,  may  have  their  shares  laid  off  together,  when 
partition  can  be  conveniently  made  in  that  way."  And  by 
§  2564 :  "When  partition  cannot  be  conveniently  made,  the  en- 
tire subject  may  be  allotted  to  any  party  who  will  accept  it, 
and  pay  therefor  to  the  other  parties  such  sums  of  money  as 
their  interests  therein  may  entitle  them  to ;  or  in  any  case  now 
pending,  or  hereafter  brought,  in  which  partition  cannot  be 
conveniently  made,  if  the  interests  of  those  who  are  entitled 
to  the  subject  or  its  proceeds  will  be  promoted  by  a  sale  of  the 
entire  subject,  or  allotment  of  part,  and  sale  of  the  residue,  the 
court,  notwithstanding  any  of  those  entitled  may  be  an 
infant,  insane  person,  or  married  woman,  may  order  such  sale, 
or  such  sale  and  allotment,  and  make  distribution  of  the  pro- 
ceeds of  the  sale,  according  to  the  respective  rights  of  those 
entitled,  taking  care,  when  there  are  creditors  of  any  deceased 
person  who  was  a  tenant  in  common,  joint-tenant,  or  co-par- 
cener, to  have  the  proceeds  of  such  deceased  person's  part  ap- 
plied according  to  the  rights  of  such  creditors."  For  further 
provisions,  reference  is  made  to  the  statute.1 

1  Sale  Instead  of  Partition. — In  Roberts  v.  Coleman,  37  W.  Va. 
143,  157,  it  is  said  by  Brannon,  J.,  with  reference  to  the  West 
Virginia  statute  (same  as  that  of  Virginia):  "By  common  law- 
partition  must  be  in  kind,  however  inconvenient.  By  statute  in- 
troduced into  the  Code  of  Virginia  of  1849,  this  inconvenience 
was  remedied  by  the  provision  that  in  any  case  'in  which  par- 
tition cannot  conveniently  be  made,  if  the  interests  of  those  who 
are  entitled  to  the  subject,  or  its  proceeds,  will  be  promoted  by 
a  sale,'  etc.,  a  sale  may  be  decreed.  Such  is  our  Code  of  1887  (ch. 
79,  §  3).    Now,  remembering  that  the  common  law  gave  right  to 


§§  164-165]  CO-TENANTS.  195 

§  165.  Hotchpot. — This  is  a  matter  of  great  importance 
under  the  American  statutes.  We  shall  discuss  the  subject  in 
connection  with  the  Virginia  statute  (Code,  §  2561),  which 
is  as  follows :  "Where  any  descendant  of  a  person  dying  intes- 
tate as  to  his  estate,  or  any  part  thereof,  shall  have  received 
from  such  intestate  in  his  lifetime,  or  under  his  will,  any 
estate,  real  or  personal,  by  way  of  advancement,  and  he,  or  any 
descendants  of  his  [see  C  off  man  v.  C  off  man  (W.  Va.),  23  S. 
E.  523]  shall  come  into  the  partition  and  distribution  of  the 
estate,  with  the  other  parceners  and  distributees,  such  advance- 
ment shall  be  brought  into  hotchpot  with  the  whole  estate, 
real  and  personal,  descended  or  distributable,  and  thereupon 
such  party  shall  be  entitled  to  his  proper  portion  of  the 
estate,  real  and  personal."  The  effect  of  this  statute  is  to  ex- 
tend the  doctrine  of  hotchpot  almost  as  far  as  it  could  be 
carried.     Biedler  v.  Biedler,  87  Va.  300. 

have  partition  in  kind,  and  this  statute,  being  an  innovation  upon 
the  common  law,  and,  taking  away  from  the  owner  the  right  to 
keep  his  freehold  in  kind,  to  justify  a  sale  in  any  case  it  must 
come  within  the  statute,  and  it  must  appear  in  some  way  by  the 
record  both  that  partition  cannot  be  conveniently  made,  and  that 
the  interests  of  the  owners  will  be  promoted  by  sale.  Such  is  the 
letter  of  the  statute.  I  think  so,  as  did  Judge  Staples  in  Zirkle 
v.  McCue,  26  Grat.  532."  And  see  Casto  v.  Eintzel,  27  W.  Va.  750. 
As  to  the  method  of  ascertaining  in  a  suit  for  partition  whether 
or  not  the  land  can  be  conveniently  divided,  it  is  said  in  Stevens 
v.  McCormiclc,  90  Va.  735:  "The  appellants  insist  that  the  usual 
and  correct  practice  is  to  appoint  not  less  than  five  commission- 
ers to  go  upon  the  land,  any  three  of  whom  may  act,  and  to  re- 
port their  views  on  the  subject  to  the  court.  This  was  not  done 
in  the  present  case,  but  the  matter  was  referred  to  a  master, 
whose  report  was  confirmed.  In  Zirkle  v.  McCue,  26  Grat.  532, 
Judge  Staples  speaking  for  the  court  said  that  to  warrant  a  de- 
cree for  a  sale,  it  must  appear  that  partition  cannot  be  conveni- 
ently made,  and  that  the  interests  of  the  parties  will  be  promoted 
by  a  sale,  but  that  these  facts  need  not  appear  from  the  report 
of  commissioners,  or  by  the  depositions  of  witnesses.  It  is  suffi- 
cient, he  added,  if  the  facts  appearing  in  the  record  reasonably 
warrant  the  decree  of  sale.  In  other  words,  the  matter  of  pro- 
cedure is  left  to  the  discretion  of  the  court." 


196  REAL    PROPERTY.  [Chap.  9 

§  166.  What  is  an  Advancement  ? — "The  true  notion  of 
an  advancement  is  the  giving  by  anticipation  of  the  whole  or  a 
part  of  what  it  is  supposed  the  child  would  be  entitled  to  on 
the  death  of  the  parent."  Chinn  v.  Murray,  4  Grat.  438 ; 
Dame  v.  Lloyd,  82  Va.  859;  27  Am.  St.  E.  748,  note.  It  is 
an  anticipatory  gift  by  way  of  advancement  to  the  child,  to 
be  accounted  for  by  him  at  the  father's  death,  in  the  distribu- 
tion of  his  estate,  in  order  that  all  the  children  may  then 
receive  equal  shares.  An  advancement  differs  from  a  pure 
gift  in  that  it  is  to  be  deducted  hereafter  in  estimating  the 
receiver's  portion  of  the  giver's  estate,  and  it  differs  from  a 
debt  in  that  the  receiver  need  not  account  for  it  if  he  chooses 
to  allow  the  residue  of  the  property  to  go  to  the  other  heirs  or 
distributees. 

§  167.  What  is  the  Evidence  that  a  Gift  is  by  Way  of  Ad- 
vancement?— This  a  question  of  intention.  The  character  of 
the  gift  should  be  such  as  to  show  that  it  is  really  antici- 
patory, and  that  in  making  it  the  father  has  in  mind  the 
final  division  of  his  property.  It  is  usually  by  way  of  portion 
on  marriage,  or  to  set  up  in  business.  But  it  seems  that  any 
gift  to  a  child,  whether  of  land  or  money,  to  a  large  amount, 
is  presumed  prima  facie  to  be  an  advancement,  though  it  may 
be  shown  that  it  was  not  so  intended.  WatMns  v.  Young,  31 
Grat.  84;  McDearman  v.  Hodnett,  83  Va.  281;  McClanahan 
v.  McClanahan,  36  W.  Va.  34;  Roberts  v.  Coleman,  37  W. 
Va.  143;  40  Am.  St.  E.  539,  note.  But  on  the  other  hand, 
money  expended  in  the  maintenance  and  education  of  a  child 
is  not  to  be  deemed  an  advancement,  unless  it  clearly  appears 
that  such  was  the  parent's  intention.     jSTor  are  mere  presents, 

In  Turner  v.  Dawson,  80  Va.  841,  it  is  held  that  when  a  court  of 
equity  causes  land  to  be  sold  for  partition,  the  person  entitled  to 
the  proceeds,  if  sui  juris,  may  elect  to  hold  them  as  realty  or 
personalty;  hut  that  if  such  person  does  not  elect,  or  is  not  sui 
juris,  and  so  is  incapable  of  electing,  the  court  will  consider  the 
proceeds  as  realty,  and  subject,  as  to  succession  and  marital 
rights,  to  the  rules  of  law  governing  real  estate. 


§§166,167]  CO-TENANTS.  197 

such  as  money,  a  gold  watch,  a  horse,  etc.,  to  be  considered 
advancements;  nor  permissive  and  precarious  benefits.  Rid- 
dle's Estate,  19  Pa.  St.  43 ;  Edwards  v.  Freeman,  2  P.  Wms. 
436;  Williams  v.  Stonestreet,  3  Hand.  559;  1  T.uck.  Com. 
Book  2,  181.  For  full  discussion,  see  Miller's  Appeal,  40  Pa. 
St.  57;  S.  C.  80  Am.  Dec.  555,  and  note  559-566;  also  see 
Gregory  v.  Winston,  23  Grat.  102;  Lewis  v.  Henry,  28  Id. 
192;  Biedler  v.  Biedler,  87  Va.  300;  Moorman  v.  Crockett, 
90  Va.  155;  Brock  v.  Brock,  92  Va.  173;  Brock  v.  Latimer 
(Kansas),  21  Am.  St.  E.  292.1 

1Gift  by  Way  of  Advancement. — When  a  child  has  received 
from  his  father  a  sum  of  money,  it  may  have  been  a  loan,  by 
which  a  debt  was  incurred  to  the  father;  a  gift  by  way  of  ad- 
vancement; or  a  pure  gift,  involving  neither  the  obligation  of 
payment,  nor  the  necessity  of  bringing  into  hotchpot  as  the  con- 
dition of  sharing  in  the  post  mortem  distribution  of  the  father's 
estate.  As  between  a  loan,  a  gift,  and  an  advancement,  the  pre- 
sumption is  said  to  be  in  favor  of  an  advancement,  because  of  its 
tendency  towards  that  equality  of  distribution  among  the  children 
which  is  presumed  to  have  been  intended.  Patterson's  Appeal, 
128  Pa.  St.  269  (27  Am.  St.  R.  748,  note).  In  Brock  v.  Latimer 
(Kansas),  21  Am.  St.  R.  292,  it  is  held  that  an  absolute  promise 
in  the  form  of  a  note  to  pay  a  certain  sum  of  money,  given  by  a 
child  to  a  parent,  may  be  shown  by  parol  evidence  to  be  intended 
between  the  parties  to  it  as  a  mere  receipt  or  memorandum  to 
show  that  the  parent  has  made  an  advancement  of  that  amount 
to  the  child,  and  that  it  was  the  intention  of  the  parent  that  it 
should  never  be  collected.  And  in  Dame  v.  Lloyd,  82  Va.  859,  it  is 
held  that  what  was  in  its  inception  a  loan  may  be  subsequently 
converted  by  will  into  an  advancement.  The  court  says:  "A  tes- 
tator can  dispose  of  his  estate  by  will  just  as  effectually  as  he 
could  by  gift  during  his  life,  and,  if  he  pleases,  turn  a  loan  into 
an  advancement,  or,  to  speak  more  accurately,  require  that  it 
may  be  treated  as  an  advancement."  And  see  Moorman  v.  Crock- 
ett, 90  Va.  185.  But,  on  the  other  hand,  an  advancement  is  an  ir- 
revocable gift,  and  a  donor  cannot  change  what  was  an  advance- 
ment into  a  debt  or  trust.  See  21  Am.  St.  R.  292,  295,  and  cases 
cited;  80  Am.  Dec.  564,  note;  1  Am.  &  Eng.  Ency.  Law  (2d  ed.) 
780. 

In  Bruce  v.  Slemp,  82  Va.  353,  it  is  held  that  a  gift  by  a  father 
to   his   daughter's   husband    during   coverture   is  deemed   an   ad- 


198  REAL    PROPERTY.  [Chap.  9 

§  168.  To  Whom,  and  by  Whom,  Can  an  Advancement  be 
Made  ? — The  language  of  the  Virginia  statute  is :  "When  any 
descendant  of  a  person  dying  intestate,"  etc.  It  follows, 
therefore,  that  the  person  alvanced  must  be  a  descendant  of 
the  person  advancing;  and  that  only  a  lineal  ancestor  can 
make  a  gift  by  way  of  advancement,  and  not  a  son  to  his 
mother,  nor  a  brother  to  his  sister,  etc.  But  "descendant"  is 
equivalent  to  "issue,"  and  includes  grandchildren,  etc.,  as  well 
as  children.  But  in  some  of  the  states,  advancements  are 
confined  to  children.     4  Kent's  Com.,  419. 

§  169.  What  Property  Can  be  Given  by  Way  of  Advance- 
ment; and  With  What  Property  Shall  it  be  Brought  into 
Hotchpot? — This  will  depend  upon  the  statutes.  The  Vir- 
ginia statute  answers  both  questions  by  saying,  "any  estate, 
real  or  personal."  This  makes  hotchpot  indeed,  "not  one 
thing  alone,  but  one  thing  with  other  things  together."  For 
the  common  law,  see  2  Bl.  Com.  (515). 

§  170.  For  Whoss  Benefit  is  Property  Brought  into  Hotch- 
pot?— If  a  man  dies  leaving  a  widow  and  several  children, 
one  of  whom  he  has  advanced  in  his  lifetime,  and  such  child 
brings  the  advancement  into  hotchpot,  this  will  increase  the 
shares  of  the  other  children,  but  not  that  of  the  widow,  who 
takes  her  share  as  distributee  in  the  estate  of  the  intestate  of 
which  he  died  possessed,  and  who  has  no  interest  whatever  in 
the  advancement.  See  Knight  v.  Oliver,  12  Grat.,  33;  Per- 
singer  v.  Simmons,  25  Id.,  238 ;  80  Am.  Dec.  559,  et  seq. 

§  171.    As  at  What  Time  is  the  Advancement  Valued? — 

The  rule  is  that  advancements  are  valued  at  the  date  of  the 
gift,  and  not  as  at  the  death  of  the  ancestor.  And  the  person 
advanced  cannot  be  charged,  in  estimating  the  amount  of  the 

vancement  to  the  daughter;  and  this  is  again  decided  in  McDear- 
man  v.  Hodnett,  83  Va.  281,  where  it  is  held  that  the  Married 
Woman's  Act  (Acts  1876-77,  p.  333)  does  not  affect  the  doctrine. 
See  80  Am.  Dec.  561,  note. 


§§  168-172]  CO-TENANTS.  199 

advancement,  with  interest  on  money,  or  with  rents  and  profits 
of  land,  from  the  date  of  the  gift  to  the  death  of  the  ancestor 
But  on  the  other  hand,  he  is  chargeable  with  the  value  at  the 
date  of  the  gift,  although  the  property  before  the  ancestor's 
death  has  greatly  diminished  in  value,  or  even  perished  alto- 
gether; and  interest  may  be  charged  on  an  advancement 
from  the  ancestor's  death  to  the  time  of  division  or  distribu- 
tion. See  Puryear  v.  Cabell,  21  Grat.,  260;  Cabell  v.  Puryear, 
27  Id.,  902;  Barrett  v.  Morris,  33  Id.  273;  West  v.  Jones,  85 
Va.,  616;  Kyle  v.  Conrad,  25  W.  Va.,  760;  1  Am.  &  Eng. 
Ency.  Law  (2nd  ed.),  783. 

§  172.  Has  the  Person  Advanced  His  Election  to  Come  into 
Hotchpot? — Undoubtedly,  but  if  he  does  not  come  in,  he  is 
debarred  from  claiming  any  part  of  the  property  of  which 
the  ancestor  died  seised  or  possessed ;  he  must  allow  the  other 
heirs  or  distributees  to  take  it  all.  It  is,  therefore,  a  question 
of  calculation  in  order  to  decide  whether  the  child  advanced 
should  come  into  hotchpot,  or  let  well  enough  alone,  and 
stay  out.  If,  for  example,  a  man  dies  leaving  three  sons,  and 
an  estate  worth  $50,000,  and  the  eldest  son  has  been  advanced 
$10,000,  he  would  come  in,  and  thereby  get  $10,000  more. 
But  if  the  advancement  was  $20,000,  and  the  residue  of  the 
estate  only  $10,000,  if  the  eldest  son  came  in  he  would  lose 
$10,000.  In  such  a  case,  therefore,  he  would  choose  not  to 
come  into  hotchpot.  1  Am.  &  Eng.  Ency.  Law  (2nd  ed.), 
785,  note  7. 


CHAPTER  X. 


REMAINDERS. 


§  173.  Definition  of  Remainder. — "A  remainder  is  a  resi- 
due of  an  estate  in  land,  depending  upon  a  particular  estate, 
and  created  together  with  the  same."  2  Tho.  Co.  (126).  In 
order  that  there  may  be  a  remainder,  there  must  be  a  particu- 
lar estate  upon  which  it  may  depend;  hence,  a  freehold  to 
commence  in  futuro  is  no  remainder,  and  is  void  at  common 
law.  But  by  "residue"  it  is  not  meant  that  every  remainder 
must  be  of  all  the  estate  or  interest  of  the  feoffor  remaining 
in  him  after  parting  with  the  particular  estate ;  for  any  num- 
ber of  remainders  for  years,  for  life,  or  in  tail,  may  be  created, 
and  yet  the  feoffor  retain  the  reversion  in  fee  simple.  By  the 
words  "created  together  with  the  same"  a  remainder  is  dis- 
tinguished from  the  grant  of  a  reversion.  For  if  A,  seised  in 
fee,  conveys  land  to  B  for  life,  and  afterwards  grants  the  fee 
simple  to  C,  this  is  not  the  creation  of  a  remainder  in  C, 
but  the  assignment  to  him  of  the  reversion.  See  1  Bl.  Com. 
(164),  (175) ;  Wms.  R.  P.  (17th  ed.)  386;  2  Min.  Ins.  (4th 
ed.)  390-'94;  Fearne  on  Remainders,  (3),  note  (c). 

§  174.  The  Two  Kinds  of  Remainders. — Remainders  are 
either  vested  or  contingent.  Blackstone  thus  defines  them: 
"Vested  remainders  (or  remainders  executed,  whereby  a  pres- 
ent interest  passes  to  the  party,  though  to  be  enjoyed  in 
futuro)  are,  where  the  estate  is  invariably  fixed,  to  remain 
to  a  determinate  person  after  the  particular  estate  is  spent. 
.  .  .  Contingent  or  executory  remainders  (whereby  no  pres- 
ent interest  passes)  are  where  the  estate  in  remainder  is 
limited  to  take  effect,  either  to  a  dubious  and  uncertain  per- 
son, or  upon  a  dubious  and  uncertain  event."     2  Bl.  Com. 

200 


§§  173, 174]  REMAINDERS.  201 

(168-'69).  These  definitions  are  believed  to  be  accurate, 
unless,  in  the  definition  of  a  vested  remainder,  by  the  words 
"where  the  estate  is  invariably  fixed,"  it  is  intended  that  a 
vested  remainder  cannot  be  limited  to  be  defeated  by  a  condi- 
tion subsequent.  That  a  vested  remainder  may  be  thus  de- 
feated, see  Gray,  Rule  against  Perpetuities,  §  102.  It  must 
be  remembered  that  a  remainder  contingent  in  its  creation 
may,  by  after  event,  become  vested  prior  to  the  time  of  its 
taking  effect  in  possession;  and  that  if  the  remainder  be  less 
than  the  fee  simple,  it  may  expire  by  limitation  during  the 
continuance  of  the  particular  estate.  So  that  in  considering 
a  remainder  we  must  assume  that  it  still  exists  as  a  remainder, 
and  we  must  judge  of  its  character  as  vested  or  contingent 
under  the  facts  as  they  were  at  the  moment  that  the  question 
arises.  Bearing  this  in  mind,  a  vested  remainder  may  be 
defined  as  follows:  A  remainder  is  vested  when  it  is  sub- 
ject to  no  condition  precedent,  and  is  always  ready,  during 
its  continuance,  to  come  into  the  possession  of  a  certain  per- 
son, already  existing  and  ascertained,  on  the  determination 
of  the  particular  estate,  now  or  hereafter,  in  any  manner 
whatsoever.     And  any  remainder  not  so  ready  is  contingent.1 

1  Definition  of  Vested  and  Contingent  Remainders. — See  in 
substantial  accord  with  the  above  definition  of  a  vested  remainder, 
20  Am.  &  Eng.  Ency.  Law,  838;  Gray,  Rule  against  Perpetuities, 
§§  101-108;  2  Min.  Ins.  (4th  ed.)  396.  It  will  be  observed  that  the 
definition  requires  that  the  remainderman,  at  the  time  the  ques- 
tion arises,  should  already  be  in  existence  and  ascertained;  and 
it  is  not  enough,  in  order  to  consider  the  remainder  now  vested, 
that  he  will  become  ascertained  at  the  moment  the  particular  es- 
tate ends  and  the  possession  becomes  vacant.  Thus  there  are 
cases  where  the  same  event  that  ends  the  particular  estate  ascer- 
tains the  remainderman;  and  whenever  the  possession  becomes 
vacant  there  will  then  be  a  certain  person  ready  to  take  posses- 
sion; as  in  the  limitation,  To  A  for  the  life  of  B,  remainder  to 
the  heirs  of  B,  or  To  A  and  B  for  life,  remainder  to  the  survivor 
and  his  heirs.  Here  the  remainder  will  vest  and  come  into  pos- 
session eo  instanti  on  the  death  of  B  in  the  one  case,  or  the  sur- 
vivorship of  A  or  B  in  the  other;  but  meanwhile  it  remains  con- 


202  REAL    PROPERTY.  [Chap.  10 

§  175.  The  Three  Great  E,ules  for  Remainders. — It  is  im- 
portant to  remember  that  remainders  proper  are  governed  by 
the  rigid  rules  of  the  common  law,  which  are  based  on  feudal 
principles,  k  ISTo  estate  of  freehold  could  be  created  except  by 
a  livery  of  seisin,  a  ceremony  corresponding  to  the  feudal 
investiture,  and  intended  to  give  publicity  to  the  transfer  of 
land.  And  the  seisin  could  never  be  in  abeyance,  for  the  law 
was  jealous  that  there  should  always  be  a  tenant  of  the  free- 
hold to  whom  the  lord  might  have  recourse  for  rents  and 
services.     Hence  originated  these  rules  as  to  the  seisin,  which 

tingent,  because,  as  yet,  there  is  no  "determinate  person"  in  whom 
"the  estate  is  invariably  fixed";  for  nemo  est  hoeres  viventis,  and 
who  can  now  tell  whether  A  or  B  will  be  the  survivor?  A  test 
suggested  by  Prof.  J.  Randolph  Tucker  will  clearly  show  that 
these  remainders  are  contingent,  viz.:  Is  the  remainderman  a 
person  to  whom  you  could  give  livery  of  seisin  now,  if  his  estate 
were  present  and  not  future?  How  could  livery  be  made  to  the 
heirs  of  B  while  B  is  living,  or  to  the  survivor  of  A  and  B  while 
both  are  alive?  And  see  Tiedeman,  Real  Prop.,  §  397,  note  2, 
where  it  is  said  that  a  reliable  test  of  a  vested  remainder  is  "the 
present  capacity  [of  the  grantor]  to  convey  an  absolute  title  to 
the  remainderman."   See  Chapman  v.  Chapman,  90  Va.  410. 

For  the  reasons  above  stated,  Fearne's  test  of  a  vested  remain- 
der, viz.:  "The  present  capacity  of  taking  effect  in  possession,  if 
the  possession  were  to  become  vacant"  (Fearne,  216),  is  open  to 
exception  in  omitting  to  add.  after  "taking  effect  in  possession," 
the  words  "of  an  already  existing  and  ascertained  person";  but 
the  whole  tenor  of  his  discussion  of  remainders  shows  that  this 
was  intended.  And  the  same  criticism  may  be  made  on  the  defi- 
nition of  Williams,  (though  it  is  believed  to  be  a  verbal  inac- 
curacy only) :  "If  any  estate,  be  it  ever  so  small,  is  always  ready, 
from  its  commencement  to  its  end,  to  come  into  possession  the 
moment  the  prior  estates,  be  they  what  they  may,  happen  to  de- 
termine, it  is  then  a  vested  remainder;'  meaning,  no  doubt,  "ready 
to  come  into  the  possession"  of  a  person  already  in  existence  and 
ascertained.   Wms.  R.  P.  (17th  ed.)  397. 

In  20  Am.  &  Eng.  Ency.  Law  (1st  ed.),  p.  841  the  importance 
of  adding  to  the  definition  of  a  vested  remainder  the  requisite 
that,  at  the  time  of  inquiry,  the  remainderman  shall  be  already 
in  existence  and  ascertained  is  thus  stated:  "The  fact  that  the 
remainder  from  the  very  instant  of  its  creation  is   capable   of 


§  175]  REMAINDERS.  203 

underlie  the  whole  doctrine  of  remainders  (Wms.  E.  P.  (17th 
ed.)  416)  : 

(1).  On  the  creation  of  any  estate  of  freehold,  whether  in 
possession  or  in  remainder,  the  seisin  must  pass  out  of  the 
feoffor. 

(2).     The  seisin  must  always  have  a  home;  i.  e.,  there 

taking  effect  in  possession  or  enjoyment  at  any  moment  the  pos- 
session or  enjoyment  may  become  vacant  by  the  determination  of 
the  particular  estate  does  not,  as  is  frequently  asserted,  neces- 
sarily show  that  it  is  vested;  nor  yet  is  it  quite  accurate  to  say 
that  'when  it  is  certain  that  the  remainder  may  take  effect  in  pos- 
session on  the  determination  of  the  preceding  estates  of  free- 
hold at  whatever  time  and  however  early  and  by  whatever  means 
these  estates  may  determine'  (1  Preston,  Estates,  79),  the  re- 
mainder must  be  considered  as  vested.  Thus  if  an  estate  be  lim- 
ited to  two  for  life,  remainder  to  the  survivor  of  them  in  fee,  the 
remainder  is  contingent,  for  until  one  of  them  die,  it  is  uncertain 
which  will  be  the  survivor  (Fearne,  Cont.  Rem.  9),  or  if  land  be 
limited  to  A  for  life,  remainder  to  'such  of  his  children  as  shall 
be  living  at  his  decease,'  each  child  has  but  a  contingent  re- 
mainder during  A's  life,  since  until  his  death  it  is  impossible  to 
tell  which  of  the  children  will  answer  the  description;  and  yet 
inasmuch  as  under  both  these  limitations  the  person  or  persons 
who  are  to  take  are  ascertained  immediately  on  the  determination 
of  the  particular  estate,  the  remainders  may  well  be  said  to  be 
capable  of  taking  effect  in  possession  or  enjoyment  at  any  mo- 
ment the  possession  or  enjoyment  may  become  vacant  by  the 
death  of  the  life  tenant,  and  may  even  be  said  to  be  certain  to 
take  effect  on  that  event,  unless  the  remainderman  predecease 
the  life  tenant."  Another  example  of  what  is  a  contingent  re- 
mainder, but  which,  by  the  language  of  the  definition  of  Fearne 
and  Williams,  might  seem  vested  is,  To  A  for  life,  remainder  to 
the  heirs  of  A,  supposing  the  rule  in  Shelley's  Case  abolished, 
and  that  the  particular  estate  can  end  only  by  the  death  of  the 
tenant  for  life,  and  not  by  his  forfeiture  in  his  lifetime.    But  see 

as  to  this  example,  Moore  v.  Littell,  41  N.  Y.  66,  and  § , 

infra,  note;  Croxall  v.  Shererd,  5  Wall.  263,  288. 

In  20  Am.  &  Eng.  Ency.  Law,  p.  840,  this  definition  is  given  of 
a  contingent  remainder:  "A  remainder  is  contingent  when  it  is 
so  limited  as  to  take  effect  to  a  person  not  in  esse,  or  not  ascer- 
tained, or  upon  an  event  which  may  never  happen,  or  may  not 
happen  until  after  the  determination  of  the  particular  estate."    It 


204  REAL    PROPERTY.  [Chap.  10 

must  always  be  a  tenant  of  the  freehold  in  whom  the  seisin 
may  vest  and  reside. 

(3).  If  at  any  time  the  seisin  happens  to  be  left  without 
a  home,  it  immediately  returns  to  the  feoffor  from  whom  it 
passed  out.  And  in  that  case  all  limitations  dependent  on  the 
seisin  are  annulled  and  destroyed.  All  the  rules  usually  laid 
down  as  governing  remainders  are  corollaries  of  (i.  e.,  deduci- 
ble  from)  the  three  rules  above  given. 

§  176.  Rules  for  Remainders  Deduced  from  the  Three 
Great  Rules. 

(1).  A  contingent  remainder  of  freehold  must  vest,  if  at 
all,  during  the  continuance  of  the  particular  estate,  or  eo 
instanti  (at  the  very  instant)  that  it  determines  (ends). 
This  is  because  the  seisin  must  have  a  home.  Thus,  let  a 
feoffment  be  made  by  the  lord  (say  X),  "To  A  for  life,  re- 
mainder to  the  heirs  of  B."  Now,  suppose  A  dies  before  B. 
Then  at  A's  death  the  seisin  is  without  a  home,  as  A  can  no 

should  be  borne  in  mind,  however,  that  the  courts  favor  the  vest- 
ing of  estates,  and  will  not  hold  remainders  to  be  contingent  if 
it  is  possible  to  consider  them  as  vested.  And  for  this  reason,  as 
is  said  by  Tiedeman  (Real  Prop.,  §  401,  note  2):  "Very  often  a 
remainder  will  be  construed  to  be  a  vested  estate  upon  a  condi- 
tion subsequent,  liable  to  be  divested  by  the  happening  of  the 
contingency,  rather  than  declare  it  to  be  a  contingent  remainder," 
as  it  would  be  if  the  condition  were  precedent.  See  Gray,  Rule 
against  Perpetuities,  §§  102-106;  also  Moore  v.  Littell,  41  N.  Y. 
66;  Kelso  v.  Lorillard,  85  N.  Y.  177;  Avery  v.  Everett,  110  N.  Y. 
317;  Thaic  v.  Ritchie,  136  U.  S.  519. 

For  cases  in  which  the  court  was  called  on  to  decide  as  to  the 
character  of  a  remainder  whether  vested  or  contingent,  see  Wal- 
lace v.  Minor,  86  Va.  550  (quaere  as  to  the  Rule  in  Shelley's  Case) ; 
Gish  v.  Moormaw,  89  Va.  345;  Robinson  v.  Robinson,  lb.,  916; 
Chapman  v.  Chapman,  90  Va.  409;  Crews  v.  Hatcher,  91  Va.  378; 
Wilson  v.  White,  109  N.  Y.  59;  McArthur  v.  Scott,  113  U.  S.  340, 
378;  Miller  v.  Texas,  etc.,  R.  Co.,  132  U.  S.  662;  Tham  v.  Ritchie, 
136  U.  S.  519;  In  re  Deighton's  Settled  Estates,  2  Ch.  D.  783; 
Cunliffe  v.  Brancker,  3  Ch.  D.  393. 


§§  175, 176]  REMAINDERS.  205 

longer  hold  it,  and  the  heirs  of  B,  who  is  alive,  have  no  exist- 
ence; nemo  est  hceres  viventis.  Hence  the  seisin  returns  to  X, 
the  feoffor,  and  the  limitation  to  the  heirs  of  B  is  annulled 
and  destroyed.  In  other  words,  the  remainder  to  the  heirs  of 
B  is  contingent;  and  as  it  does  not  vest  during  A's  life,  nor 
at  the  moment  A  dies,  it  can  never  vest  at  all,  and  so  fails 
altogether.    2  Bl.  Com.  (Cooley),  168  n.  (6). 

(2).  A  contingent  remainder  of  freehold  requires  a  par- 
ticular estate  of  freehold  to  support  it.  This  is  because  the 
seisin  must  pass  out  of  the  feoffor,  and  must  be  able  to  find 
a  home  when  it  goes  out.  Thus,  "To  A  for  life,  remainder 
to  the  heirs  of  B."  Here  the  contingent  remainder  to  the 
heirs  of  B  is  well  limited,  because  the  seisin  finds  a  home  in 
A,  the  tenant  of  the  particular  estate,  who  has  a  freehold, 
and  so  can  take  and  hold  the  seisin.  But  if  the  limitation 
were  "To  A  for  ten  years,  remainder  to  the  heirs  of  B,"  the 
remainder  would  be  void  db  initio;  for  there  is  no  home  pro- 
vided for  the  seisin.  A  cannot  hold  it,  for  his  estate  is  not 
freehold;  B  cannot  take  it,  because  it  is  not  given  to  him,  but 
to  his  heirs;  and  the  heirs  of  B  cannot  take  it,  because  while 
B  lives  his  heirs  are  not  in  existence.  Hence  the  seisin,  for 
want  of  a  home  elsewhere,  returns  to  the  feoffor;  and  so  the 
remainder  to  the  heirs  of  B  never  takes  effect.  The  remainder 
to  the  heirs  of  B  was  a  contingent  remainder  of  freehold  (in 
fee-simple  indeed),  and  did  not  have  a  freehold  support,  as  the 
rule  requires.     Cunliffe  v.  Brancker,  3  Ch.  D.  393,  399. 

(3).  A  vested  remainder  of  freehold  does  not  require  a 
freehold  support;  i.  e.,  it  need  not  be  preceded  by  a  freehold 
particular  estate.  Thus,  "To  A  for  ten  years,  remainder  to 
B  and  his  heirs."  Here  B's  remainder  is  vested,  and  well  lim- 
ited. The  remainder  is  to  B  in  fee-simple  (the  word  heirs 
being  a  word  of  limitation),  and  nothing  is  given  to  the 
heirs  of  B.  In  this  case  the  seisin  is  received  by  A  as  the  ten- 
ant in  possession,  but  it  immediately  enures,  or  passes  to  B 
by  virtue  of  his  having  the  freehold.     B  is  a  certain  living 


206  REAL    PROPERTY.  [Chap.  10 

person  in  whom  the  seisin  can  vest  and  reside,  and  the  re- 
mainder is  well  limited. 

(4).  A  contingent  remainder  not  of  freehold  does  not  re- 
quire a  freehold  support.  Thus,  "To  A  for  ten  years,  re- 
mainder to  the  heirs  of  B  for  twenty  years."  The  contingent 
remainder  to  the  heirs  of  B  is  well  limited.  For  the  remaind- 
er is  not  freehold,  and  the  seisin  does  not  need  to  pass  out  of 
the  feoffor ;  and  so  it  does  not  need  to  find  a  home  in  either  A 
or  the  heirs  of  B,  and  the  remainder  is  good  because  it  is  not 
dependent  on  the  seisin. 

§  177.    Examples  of  Vested  Remainders. 

( 1 ) .  To  A  for  life,  and  after  A's  decease,  remainder  to  B 
and  his  heirs.     Doe  v.  Considine,  6  Wall.  458. 

(2).  To  A  and  the  heirs  of  his  body,  remainder  to  B  and 
his  heirs. 

( 3 ) .  To  A  for  life,  remainder  to  B  for  life,  remainder  to  C 
for  life,  remainder  to  D  for  life,  etc.,  remainder  to  Z  for  life. 
Here  all  the  life  estates  in  the  remainder  are  vested.  It  may 
be  thought  that  Z  has  a  very  slight  chance  to  outlive  all  of 
the  preceding  life  tenants,  and  take  possession  of  the  land. 
This  is  true,  but  a  remainder  is  none  the  less  vested,  because 
the  chances  are  against  its  ever  taking  effect  in  possession. 
For,  in  referring  to  the  definition  of  a  vested  remainder 
(§  1741,  supra),  we  see  that  Z  is  a  certain  person,  ready  to  take 
possession  of  the  land  if  the  possession  should  become  vacant 
in  any  way  whatsoever,  as  by  the  death  or  forfeiture  of  all  the 
preceding  life  tenants.  It  is  true  Z  may  die  first  of  all,  and 
so  would  never  take  possession;  but  Z's  death  ends  his  life 
estate,  and  there  is  no  further  question  as  to  its  being  vested 
or  contingent.  While  Z  lives,  however,  i.  e.,  during  the  con- 
tinuance of  his  estate,  the  remainder  to  him  is  always  ready 
to  come  into  the  possession  of  a  certain  person,  to-wit :  Z,  if 
the  possession  should  become  vacant,  and  this  makes  the  re- 
mainder to  Z  a  vested  remainder.  Creivs  v.  Hatcher,  91  Va. 
378. 


§§  176-178]  REMAINDERS.  207 

§  178.  Fearne's  Four  Classes  of  Contingent  Remainders. — 
Fearne  defines  a  contingent  remainder  (p.  3)  as  a  remain- 
der limited  so  as  to  depend  on  an  event  or  condition  which 
may  never  happen  to  be  performed,  or  which  may  not  hap- 
pen or  be  performed  until  after  the  determination  of  the 
preceding  estate.  He  then  distributes  remainders  into  these 
four  classes : 

(1).  When  the  remainder  depends  entirely  upon  the  con- 
tingent determination  (i.  e.,  uncertain  ending)  of  the  par- 
ticular estate  itself.  Here  the  particular  estate  may  end  in 
either  one  of  several  ways,  but  the  remainder  is  to  take  effect 
in  possession  if  the  particular  estate  ends  in  one  of  these  ways, 
and  not  if  it  ends  in  any  other.  The  remainder  is  therefore 
contingent,  because  it  is  not  ready  to  come  into  the  possession 
of  a  certain  person  when  the  particular  estate  ends  in  any  way 
whatsoever,  as  is  required  by  the  definition  given  above.  For 
example:  "To  A  until  B  returns  from  Home;  and  on  B's 
return,  to  C  and  his  heirs."  Here  A's  estate  has  a  double 
limitation,  and  is  to  end  on  A's  death  or  B's  return,  whichever 
happens  first.  But  C  is  to  take  on  B's  return,  and  not  on  A's 
death.  Meanwhile  A's  estate  is  liable  at  any  time  to  end  in 
either  of  two  ways,  and  yet  C  cannot  take  in  whatever  way  it 
ends.  It  may  end  by  A's  death,  and  then  C  takes  nothing. 
Hence  by  definition  above,  C's  remainder  is  contingent. 
Fearne  (5),  n.  (d). 

(2).  "When  some  uncertain  event,  unconnected  with  and 
collateral  to  the  determination  of  the  preceding  particular 
estate,  is  by  the  nature  of  the  limitation  to  precede  the  re- 
mainder. For  example :  "To  A  for  life,  and  if  C  dies  before 
A,  remainder  to  B  and  his  heirs."  Here  B  cannot  take  unless 
C  dies  before  A,  and  yet  C's  death  does  not  affect  the  particu- 
lar estate  of  A.  This  is  what  is  meant  by  calling  the  event 
"unconnected  with  and  collateral  to  the  determination  (end- 
ing) of  the  particular  estate." 

(3).  When  a  remainder  is  limited  to  take  effect  upon  an 
event  which   must  happen   some  time   or  other,   but  which 


208  REAL    PROPERTY.  [Chap.  10 

may  not  happen  until  after  the  determination  of  the  particu- 
lar estate.  For  example :  "To  A  for  life,  and  after  C's  death, 
remainder  to  B  and  his  heirs."  Here  C's  death  is  a  condition 
precedent  to  B's  taking.  C  must  die,  but  he  may  not  die 
until  after  A  dies,  i.  e.,  until  after  the  ending  of  the  particular 
estate.  Hence,  if  the  particular  estate  should  end  now  by 
A's  death  in  the  lifetime  of  C,  B's  remainder  would  not  be 
ready  to  come  into  possession,  and  therefore  is  contingent. 
And  on  the  death  of  A,  living  C,  B's  remainder  fails. 

(4).  When  a  remainder  is  limited  to  a  person  not  in  be- 
ing, or  not  ascertained.  For  example:  "To  A  for  life,  re- 
mainder to  the  heirs  of  B";  or,  "To  A  for  life,  remainder  to 
the  first  (as  yet  unborn)  son  of  B,  and  the  heirs  of  the  body 
of  such  son." 

The  following  example  is  a  curiosity  as  containing  all  of 
Fearne's  four  classes  of  contingent  remainders :  To  A  until 
B  returns  from  Rome,  and  after  the  return  of  B  and  C  from 
Borne,  and  the  death  of  D,  to  the  first  unborn  son  of  A  and  the 
heirs  of  his  body.    See  Fearne  on  Bern.,  p.  (9),  note  (g). 

§  179.  Remainders  which  Do  or  Do  not  Come  Under 
Fearne's  Third  Class. 

(1).  To  A  for  twenty-one  years,  if  he  shall  so  long  live; 
and  after  A's  death,  remainder  to  B  and  his  heirs.  Here  A 
must  die,  but  he  may  not  die  during  the  term  of  twenty-one 
years.  The  remainder  is,  therefore,  contingent  under 
Fearne's  third  class,  and  being  freehold,  is  void  for  want  of 
a  particular  estate  of  freehold  to  support  it.     Fearne  (8). 

(2).  To  A  for  ninety-nine  years,  if  he  shall  so  long  live; 
and  after  A's  death,  remainder  to  B  and  his  heirs.  Here 
it  is  considered  that  A  cannot  live  ninety-nine  years,  and  that 
his  death  must  occur  during  that  term,  when  B  will  take. 
Hence  there  is  no  contingency,  and  B's  remainder  does  not 
come  under  Fearne's  third  class,  but  is  vested.  And  "being 
vested,  it  is  well  limited,  as  a  vested  remainder  of  freehold 
does  not  require  a  freehold  to  support  it.  But  it  must  not 
be  supposed  that  A  has  a  freehold  particular  estate.     That 


§§  178-180]  REMAINDERS.  209 

remains  a  mere  term  of  years,  but  the  remainder  becomes  vest- 
ed, and  so  does  not  need  the  prop  of  a  preceding  freehold. 
Fearne  (20),  n.  (i). 

(3).  To  A  for  nine  hundred  and  ninety-nine  years,  if  he 
so  long  lives;  and  after  A's  death  remainder  to  the  heirs  of 
B.  This  remainder  is  contingent  under  Fearne's  fourth  class 
(though  not  under  the  third),  and  being  freehold,  is  void 
for  want  of  a  freehold  support. 

The  courts  have  not  settled  how  long  a  term  makes  the 
remainder  to  a  certain  person  vested  or  contingent,  in  cases 
like  the  first  and  second  examples  above.  It  must  depend 
on  circumstances.  But  it  has  been  held  that  twenty-one  years 
makes  a  remainder  contingent,  while  eighty  or  ninety  years 
makes  it  vested.     See  Fearne  (20). 

§  180.    The  Doctrine  of  Abeyance  of  the  Fee  Simple. — 

Blackstone  declares  (2  Bl.  Com.  107)  that  the  remainder  must 
pass  out  of  the  feoffor  at  the  same  time  with  the  creation  of  a 
particular  estate.  Now,  conceding  this  to  be  true,  if  we  take 
the  example,  "To  A  for  life,  remainder  to  the  heirs  of  B," 
there  must  be  an  abeyance  of  the  fee-simple  until  after  the 
death  of  A  or  B.  For  the  rule  above  requires  the  remainder 
(which  is  in  fee)  to  pass  out  of  the  feoffor.  But  where  can  it 
go?  Not  to  A,  for  his  estate  is  for  life  only,  and  we  are 
speaking  of  the  fee  simple.  Not  to  B,  for  he  takes  nothing  at 
all;  and  not  to  the  heirs  of  B,  for  B  is  living,  and  his  heirs 
are  non-existent.  Hence,  as  under  the  rule  above  the  fee 
simple  was  declared  "out,"  and  as  nobody  knew  its  "where- 
abouts," it  was  said  to  be  in  abeyance — a  confession  of  ignor- 
ance sometimes  covered  by  Latin,  declaring  that  the  fee  simple 
was  in  niibibus  (in  the  clouds),  or  in  gremio  legis  (in  the 
bosom  of  the  law).  See  Wallach  v.  Van  Risivick,  92  U.  S. 
202,  212;  Illinois,  etc.,  R.  Co.  v.  Bosiuorth,  133  IT.  S.  92,  100. 
The  abeyance  continues  during  the  joint  lives  of  A  and  B, 
and  ends  on  the  death  of  either.  For  on  B's  death  before  A, 
the  fee  simple  would  pass  to  the  heirs  of  B,  now  ascertained 
by  B's  death  (eldest  son,  e.  g.).     On  the  other  hand,  if  A  died 

14 


210  REAL    PROPERTY.  [Chap.  10 

before  B,  the  remainder  would  fail  for  want  of  a  home  for  the 
seisin,  as  it  would  not  vest  eo  instanti  the  particular  estate 
ended.  The  remainder  failing,  the  fee  simple  returns  to  the 
feoffor,  and  this  ends  its  abeyance. 

§  181.  Fearne's  View  of  Abeyance. — Fearne  denies  the 
universality  of  Blackstone's  rule,  and  holds  that  a  remainder 
continues  in  the  feoffor  until  it  has  some  one  else  to  go  to. 
Hence,  in  the  example  above,  the  fee  simple  never  leaves  the 
feoffor  until  by  B's  death,  living  A,  it  can  vest  in  the  heirs  of 
B.  If  A  dies  first,  the  remainder  fails,  and  the  fee  simple 
never  leaves  the  feoffor  at  all.  See  Fearne  (361)  ;  Wms.  E. 
P.  (413);  2  Bl.  Com.  (Sharswood)  107,  note  4;  Bigley  v. 
Watson,  (Tenn.)  38  L.  E.  A.  679. 

§  182.    Additional  Rules  for  Remainders. 

(1).  A  remainder  must  always  have  the  support  of  a 
particular  estate  in  possession.  Hence,  a  freehold  to  com- 
mence in  futuro  is  no  remainder,  and  is  void  at  common  law. 
For  example:  "To  A  for  life  from  and  after  the  first  day  of 
January."     2  Tho.  Co.  (348)  n.  (T). 

(2).  A  remainder  must  always  await  the  regular  expira- 
tion of  the  particular  estate;  it  cannot  take  effect  in  deroga- 
tion of  (i.  e.,  by  cutting  short)  the  particular  estate.  For 
example:  "To  A  (a  widow)  for  life:  provided,  however,  that 
if  A  marries  again,  her  estate  for  life  is  to  come  at  once  to 
an  end,  and  the  land  to  go  to  B  and  his  heirs."  Here  the  lim- 
itation over  to  B  after  A's  estate  on  condition  is  void  as  a 
remainder  at  common  law ;  but  it  is  allowed  in  a  devise,  or  in 
a  deed  by  way  of  use,  when  it  is  called  a  conditional  limita- 
tion. 

( 3 ) .  After  a  fee  simple  no  remainder  can  be  limited.  For 
example :  "To  A  and  his  heirs,  remainder  to  B  and  his  heirs" ; 
or,  "  To  A  and  his  heirs,  but  on  B's  marriage,  remainder  to 
B  and  his  heirs."  B's  estate  is  void  as  a  remainder  in  both 
examples.  Another  form  of  the  rule  is  that  there  can  be 
"no  fee  on  a  fee,"  or,  "a  fee  cannot  be  mounted  on  a  fee." 


§§  180-184]  REMAINDERS.  211 

(4).  A  remainder  must  never  be  separated  from  its  par- 
ticular estate.  For  example:  "To  A  for  life,  and  after  A's 
death  and  one  week,  remainder  to  B  and  his  heirs."  B's  re- 
mainder is  void ;  and  on  A's  death,  the  seisin  returns  at  once 
to  the  feoffor  for  want  of  any  other  home.  (Wms.  E.  P. 
(17th  ed.)  417.) 

§  183.  Contingency  with  a  Double  Aspect.— This  is  an  ap- 
parent exception  to  the  general  rule  that  there  cannot  be  a 
fee  on  a  fee,  although  in  reality  it  does  not  come  within  that 
rule.  It  is  the  name  given  to  two  fee  simple  contingent  re- 
mainders in  the  alternative,  where  the  second  remainder  in  fee 
takes  effect  in  lieu  of  the  first,  and  only  in  case  the  first  never 
takes  effect  at  all.  Even  the  vesting  of  the  first  fee  utterly  de- 
stroys the  second.  For  example:  "To  A  for  life;  and  if  A 
shall  have  a  son  born  to  him,  then  to  such  son  and  his  heirs; 
but  if  A  have  no  son,  then  to  B  and  his  heirs."  If  A  has  a 
son,  the  remainder  to  such  son  vests,  and  destroys  B's  estate. 
If  A  never  has  a  son,  then  at  A's  death  B's  remainder  vests, 
and  comes  into  possession.  B  cannot  be  said  to  take  a  fee 
after  or  on  a  preceding  fee;  for  B  only  takes  in  case  the  fee  to 
A's  son  never  vests.  B's  fee  is  then  a  substitute  for  that  lim- 
ited to  the  unborn  son  of  A,  but  is  not  on  it  or  after  it.  See 
Fearne  Bern.  373;  Cooper  v.  Hepburn,  15  Grat.  558;  Walker 
v.  Lewis,  90  Ya.  578. 

§  184.  Cross  Remainders. — A  cross  remainder  is  where 
lands  are  given  to  two  or  more  with  reciprocal  limitations  of 
the  lands  of  each  to  the  other.  For  example :  "Deed  to  A  of 
Blackacre  for  life,  and  to  B  of  Whiteacre  for  life,  with  cross 
remainders  between  them."  This  is  a  short  way  of  saying 
what,  written  out  in  full,  is  as  follows :  Deed  of  Blackacre  to 
A  for  life,  remainder  to  B  for  life ;  of  Whiteacre  to  B  for  life, 
remainder  to  A  for  life.  So  there  are  two  estates  in  both 
Blackacre  and  Whiteacre,  one  in  possession,  the  other  in  re- 
mainder. A  and  B  both  have  two  estates,  but  only  one  in 
each  piece  of  land.     But  as  each  has  a  remainder  after  the 


212  REAL    PROPERTY.  [Chap.  10 

death  of  the  other  in  that  other's  land,  these  remainders  are 
called  cross  remainders. 

But  though  there  may  be  two  separate  estates  held  in  sever- 
alty, the  most  common  case  of  cross-remainders  is  where  land 
is  held  by  several  tenants  in  common,  there  being,  of  course, 
undivided  possession.  The  same  rules  apply  as  if  the  shares 
were  held  in  severalty,  and  each  remainder  was  separate  and 
independent.  For  example :  Grant  of  Blackacre  "To  A  and  B 
and  the  heirs  of  their  bodies,  to  hold  as  tenants  in  common, 
with  cross-remainders,  remainder  to  C  and  his  heirs."  Here 
on  death  of  A  or  B,  and  failure  of  issue,  his  part  goes  to  the 
other,  and  finally,  on  failure  of  the  heirs  of  the  body  of  the 
survivor,  the  estate  goes  to  C.     1  Prest.  Est.  (105). 

The  obvious  design  and  intention  of  such  a  limitation  is 
that  upon  the  share  of  one  of  the  takers  failing  for  want  of 
heirs  of  the  body,  instead  of  its  reverting  to  the  original  owner, 
or  going  at  once  to  the  final  remainder-man,  it  shall  go  to  the 
tenant  of  the  other  part  of  the  estate,  and  the  entire  estate 
go  over  together  on  the  final  failure  of  issue  of  both,  and  not 
in  parcels  on  the  failure  of  issue  of  each. 

This  reciprocal  right  of  each  to  a  remainder  in  the  part 
of  the  other,  expectant  upon  the  determination  of  the  par- 
ticular estate  of  that  other  in  such  part,  whether  for  life  or 
in  tail,  is,  when  the  particular  estates  are  for  life,  somewhat 
similar  to  the  right  of  survivorship  between  joint-tenants. 
But  notice  that  survivorship,  even  of  a  fee  simple,  takes  place 
at  once  on  the  death  of  either  tenant ;  but  where  the  particular 
estate  upon  which  cross-remainders  depend  is  an  estate-tail, 
the  remainder  must  await  the  determination  of  the  estate-tail. 
And  one  joint-tenant  can  defeat  survivorship  by  alienation; 
but  the  cross  remainder  is  a  subsisting  vested  right,  not  liable 
to  be  destroyed.  Such  remainders  also  resemble  an  estate 
held  by  several  in  coparcenary,  who  are  heirs  to  each  other, 
as  three  sisters  in  England.  On  the  death  of  one,  her  share 
descends  to  the  other  two,  and  so  on.  But  one  coparcener  can 
defeat  such  descent  by  alienation,  and  it  only  applies  to  estates 
of  inheritance. 


§§184,185]  REMAINDERS.  213 

Cross  remainders  may  be  limited  by  deed  or  by  will.  But 
in  a  deed  there  must  be  express  words,  whereas  in  a  will  they 
are  often  implied  in  favor  of  the  intent.  They  may  be  be- 
tween two  or  more.  And  in  a  will  it  seems  the  law  favors 
cross  remainder  between  two,  but  not  between  a  greater  num- 
ber.    2B1.  Com.  (381). 

Cross  remainders  are  more  readily  implied  between  mem- 
bers of  a  class  than  between  strangers,  e.  g.,  more  readily  be- 
tween the  children  of  A,  than  between  A,  B  and  C.  17  Ves. 
64;  3  Hare  1.  Thus  in  Powell  v.  Hoiuells,  L.  E.  3  Q.  B.  654, 
a  testatrix  devised  land  unto  and  between  her  three  nephews, 
W.,  T.  and  D.,  in  equal  shares,  and  the  heirs  of  their  bodies 
respectively  lawfully  begotten,  and  in  default  of  such  issue 
of  any  of  them,  unto  M.  P.  and  her  heirs.  Held,  that  cross 
remainders  were  created  by  implication  between  W.,  T.  and 
D.,  and  that  the  words  of  any  of  them  must  be  construed  of 
all  of  them.  See  also  Tebbs  v.  Duval,  17  Grat.  349;Cowper, 
31,  717,  797;  1  Atk.  579;  Taffe  v.  Conmee,  19  Ho.  of  Lds. 
Cas.  64;  Atkinson  v.  Holtby,  lb.  313. 

§  185.  Destruction  at  Common  Law  of  Contingent  Re- 
mainders.— For  full  discussion  see  17  Am.  St.  E.  839-843, 
note.  A  contingent  remainder  at  common  law  was  liable  to 
be  destroyed  (i.  e.,  to  come  to  a  sudden  and  violent  end)  in 
several  ways.  Thus,  take  the  example :  "To  A  for  life,  re- 
mainder to  the  first  unborn  son  of  A  and  the  heirs  of  his  body, 
remainder  to  D  and  Ms  heirs."  Here  the  contingent  re- 
mainder to  A's  unborn  son  would  be  destroyed  either  by  a 
forfeiture  incurred  by  A,  or  by  the  merger  of  A's  life  estate 
in  the  fee-simple. 

For  suppose  A  forfeits  before  any  son  is  born  to  him,  or 
even  begotten.  Then  A  can  no  longer  hold  the  seisin,  and  it 
goes  to  D,  the  vested  remainderman,  and  this  leaves  the  con- 
tingent remainder  without  a  particular  estate  to  support  it 
(without  a  prop),  and  so  it  is  at  once  destroyed.  And  if, 
after  the  forfeiture,  a  son  is  born  to  A,  such  son  can  never  take 
the  estate,  because  the  remainder  was  not  ready  to  vest  eo  in- 


214  REAL    PROPERTY.  [Chap.  10 

stanti  that  the  particular  estate  determined.  2  Bl.  Com. 
(171). 

Again,  suppose  that  before  the  birth  of  a  son  to  A,  D 
releases  to  A  the  fee  simple.  Then  A's  life  estate  would  be- 
come merged  in  the  fee  simple,  the  rule  being  that  when  a 
larger  and  a  smaller  estate  meet  in  one  and  the  same,  person, 
by  two  different  conveyances,  without  any  intervening  vested 
estate,  the  smaller  is  at  once  merged  into,  or  swallowed  up 
by,  the  larger.  Garland  v.  Pamplin,  32  Grat.  315;  Little  v. 
Bowen,  76  Va.  724;  1  Va.  Law  Eeg.  453,  note  by  Judge 
Burks.  Applying  this  rule,  A's  life  estate  is  merged  in  the 
fee,  and  A  has  the  fee  simple  in  possession,  which  destroys  the 
remainder  to  A's  son  (unborn),  as  no  remainder  is  allowed 
after  a  fee  simple.  And  as  the  remainder  to  A's  unborn  son  is 
contingent,  its  intervention  could  not  prevent  the  merger,  but 
merger  takes  place  in  spite  of  it,  and  to  its  destruction.  Wms. 
E.  P.  (426). 

And,  finally,  suppose  A  surrenders  his  life  estate  to  D, 
before  A's  son  is  born.  Here  again,  under  the  rule,  merger 
takes  place,  and  D  has  at  once  the  entire  fee-simple.  A's  life 
estate  no  longer  exists,  and  the  remainder  to  A's  unborn  son 
is  destroyed  at  once  for  lack  of  a  freehold  support.  For  what 
constitutes  a  surrender,  see  Beall  v.  White*  94  U.  S.  382 ;  Ed- 
wards v.  Hale,  37  W.  Va.  193. 

§  186.  Mode  at  Common  Law  of  Preserving  a  Contingent 
Remainder  from  Destruction. — This  was  by  the  interposition 
of  trustees  to  protect  the  contingent  remainder.  The  form  of 
limitation  was  as  follows :  "To  A  for  life,  remainder  to  B  and 
C,  trustees,  for  life  of  A,  remainder  to  the  first  unborn  son  of 
A  and  the  heirs  of  his  body,  remainder  to  D  and  his  heirs." 
Now,  suppose  A  forfeits  before  he  has  a  son,  the  seisin  finds 
home  in  B  and  C,  the  trustees ;  and  if  A  has  a  son  afterwards, 
the  remainder  to  the  son  can  then  vest.  Thus,  while  forfeit- 
ure is  not  prevented,  its  effect  upon  the  contingent  remainder 
is  avoided.  Again,  suppose  A  surrenders  to  D,  or  D  releases 
to  A,  no  merger  can  now  take  place,  and  of  course  the  re- 


§§185-188]  REMAINDERS.  215 

mainder  to  A's  unborn  son  is  unaffected.  For  the  trustees 
have  a  vested  right  interposed  between  the  estates  of  A  and  D, 
and  the  larger  and  smaller  estates  (those  of  D  and  A)  cannot 
get  together.    2  Bl.  Com.  (172;  Wins.  E.  P.  (17th  ed.)  428). 

§  187.  Rule  of  Perpetuities  for  Contingent  Remainders. — 
The  rule  is  thus  laid  down :  "No  estate  in  land  can  be  given  to 
an  unborn  person  for  life,  followed  by  any  estate  to  the  child 
of  such  unborn  person."  In  such  case  the  estate  of  the  unborn 
person's  child  is  void,  as  violating  the  Eule  against  Perpe- 
tuities. See  Wms.  E.  P.  (17th  eel.),  470-'71.  For  example: 
"To  A  for  life,  remainder  to  B  (first  unborn  son  of  A)  for  life, 
remainder  to  C  (first  unborn  son  of  B)  for  life."  Here  A  is 
living,  and  his  life  estate  supports  the  contingent  remainders 
to  both  B  and  C,  but  the  Eule  against  Perpetuities  pronounces 
C's  estate  void;  not  because  it  violates  any  rule  to  the  seisin, 
but  because  it  is  against  public  policy.  For  if  the  law  per- 
mitted a  succession  of  life  estates  to  the  children  of  unborn 
children  in  infinitum,  it  would  create  a  virtual  entail,  not  bar- 
rable  by  a  common  recovery ;  and  the  land  might  thus  be  tied 
up  for  generations.  For  example :  "To  A  for  life,  remainder 
to  B  (unborn  son  of  A)  for  life,  remainder  to  C  (unborn  son 
of  B)  for  life,  remainder  to  D  (unborn  son  of  C)  for  life,  re- 
mainder to  E  (unborn  son  of  D)  for  life,"  etc.  Now  all  these 
remainders  are  well  limited,  and,  if  on  A's.  death  he  has  a  son 
B,  B  can  take  the  seisin,  and,  if  on  B's  death  he  has  a  son  C, 
C  can  take  the  seisin,  and  so  on  clown  indefinitely,  until  A's 
issue  fails.  To  prevent  this  devolution  of  life  estates,  the  law 
draws  a  line  after  the  first  unborn  son,  and  annuls  the  re- 
mainders to  all  the  rest,  thus  in  effect  permitting  alienation 
in  fee-simple  to  be  postponed  during  lives  in  being,  and 
twenty-one  years  thereafter,  but  no  longer.  Wms.  E.  P. 
(-120),   (469);  3  Jarman,  Wills,  711. 

§  188.  The  Cy  Pres  Doctrine  as  to  Contingent  Remainders. 
— This  is  a  rule  by  which  when  a  testator  has  violated  the 
Rule  against  Perpetuities,  his  intention  is  allowed  effect  as 
far  as  (cy  pres)  is  consistent  with  the  rules  of  law.     Thus, 


216  REAL    PROPERTY.  [Chap.  10 

in  a  devise  "To  A  for  life,  remainder  to  B,  (the  unborn  son 
of  A),  for  life,  remainder  to  C,  (the  unborn  son  of  B,) 
and  the  heirs  of  C's  body,"  the  remainder  to  C  is  void;  and 
striking  it  out  would  leave,  "To  A  for  life,  remainder  to 
B  for  life."  But  by  the  cy  pres  doctrine,  as  the  testator  has 
shown  a  purpose  to  tie  up  the  land,  the  law,  in  favor  of  his 
intention,  changes  the  estate  to  B,  the  unborn  son  of  A,  from 
a  life  estate  to  an  estate-tail,  so  that  the  limitation  becomes 
finally,  "To  A  for  life,  remainder  to  B  and  the  heirs  of  his 
body."  Wms.  E.  P.  (17th  ed.)  471;  Hampton  v.  Holmon, 
5  Ch.  D.  183. 

N.  B. — The  cy  pres  doctrine  is  not  applied  (1)  unless  the 
estate  to  C,  the  unborn  son  of  the  unborn  son,  is  an  estate 
tail;  and  (2)  unless  the  case  occurs  in  a  devise.  Then  the 
estate-tail  given  to  C,  which  is  void  as  to  him,  is  transferred 
to  B,  taking  the  place  of  the  life  estate  given  him  by  the 
testator.    20  Am.  &  Eng.  Ency.  Law,  867  . 

§  189.    Contingent  Remainders  Descendible  and  Devisable. 

— In  Fearne,  Bemainders  (364),  it  is  said:  "Another  ob- 
servation is,  that  a  contingent  remainder  of  inheritance  is 
transmissible  to  the  heirs  of  the  person  to  whom  it  is 
limited,  if  such  person  chance  to  die  before  the  contingency 
happens.  But,  of  course,  this  will  not  be  the  case  if  the 
existence  of  the  remainder  man,  at  some  particular  time, 
enters  into  and  forms  part  of  the  contingency  itself  upon 
which  his  interest  is  to  take  effect.  Thus,  if  a  limitation 
be  to  children  who  shall  attain  a  certain  age,  or  shall  survive 
a  given  period  or  event,  the  death  of  any  child  pending  the 
contingency  has  the  effect  of  striking  the  name  of  such 
child  out  of  the  class  of  presumptive  objects ;  but  when  the 
contingency  on  which  the  vesting  depends  is  a  collateral 
event,  irrespective  of  attainment  to  a  given  age,  or  surviving 
a  given  period,  the  death  of  any  child  pending  the  contingency 
works  no  exclusion,  but  simply  substitutes  and  lets  in  his 
heir-at-law.  See  2  Jarman,  Wills  (860),  where  the  doc- 
trine is  thus  laid  down  as  to  contingent  interests  in  per- 


§§  188-190]  REMAINDERS.  217 

sonalty,  but  it  is  equally  applicable  to  contingent  interests  in 
land.  And  see  Medley  v.  Medley,  81  Va.  265,  where  the 
same  doctrine  is  laid  down  as  to  executory  devises,  which 
are  said  to  stand,  as  respects  transmissibility,  on  the  same 
footing  as  contingent  remainders. 

As  to  the  devisdbility  of  contingent  remainders,  Williams 
says:  "A  contingent  remainder  was  also  devisable  by  will 
under  the  old  statutes,  and  is  so  under  the  present  Wills 
Act  (1  Vict.,  c.  26,  §  3)."  Wins.  E.  P.  423.  Such  re- 
mainder is  undoubtedly  devisable  in  Virginia.  See  Code 
Va.,  §  2512,  authorizing  a  devise  of  any  estate  to  which  a 
person  shall  be  "entitled  at  his  death,  and  winch,  if  not  so 
disposed  of,  would  devolve  upon  his  heirs."  That  the  person 
to  whom  a  contingent  interest  is  limited  may  be  said  to  be 
"entitled"  at  his  death,  see  Medley  v.  Medley,  81  Va.  265, 
273.  And  see  Code  of  Va.,  §  2418,  declaring  that  "any 
interest  in  or  claim  to  real  estate  may  be  disposed  of  by 
deed  or  by  will."  See  Wins.  E.  P.  (17th  ed.)  423;  2  Min. 
Ins.   (4th  ed.)  421. 

§  180.  Assignment  of  Contingent  Remainders. — At  com- 
mon law  the  doctrine  was  that  a  contingent  remainder  was 
inalienable  at  law,  and  not  grantable  by  deed.  It  could, 
however,  be  passed  by  fine,  or  released  for  the  benefit  of 
the  reversion;  and  in  equity  an  assignment  for  a  valuable 
consideration  was  recognized  and  enforced.  See  Fearne, 
Eemainders,  (365-'66)  ;  Wms.  E.  P.  (17th  ed.),  422.  But 
now,  in  England,  contingent  interests  may  be  conveyed  by 
deed  (8  and  9  Vict.  c.  106,  §  6) ;  and  so  in  Virginia,  by 
Code,  §  2418,  enacting  that  "any  interest  in  or  claim  to  real 
estate  may  be  disposed  of  by  deed  or  by  will."1 

1  Inalienability  of  Contingent  Remainders  at  Common  Law. — 
In  Williams,  Real  Property,  (17th  ed.)  423,  it  is  said:  "The  cir- 
cumstance of  a  contingent  remainder  having  been  so  long  in- 
alienable at  law,  was  a  curious  relic  of  the  ancient  feudal  system. 
This  system,  the  foundation  of  our  jurisprudence  as  to  landed 
property,  was  strongly  opposed  to  alienation.    Its  policy  was  to 


218  REAL    PROPERTY.  [Chap.  10 

§  191.    Sale  of  Contingent  Interests  Under  Decree  of  Court. 

— By  statute  in  Virginia,  provision  is  made  for  the  sale  of 
contingent  interests  under  decree  of  a  court  of  chancery. 
See  Code  Va.,  §  2432,  which  enacts  as  follows:  "When  any 
estate,  real  or  personal,  is  given  by  deed  or  will  to  any  person, 
subject  to  a  limitation  contingent  upon  the  dying  of  any 
person  without  heir,  or  heirs  of  the  body,  or  issue  of  the  body, 
or  children,  or  offspring,  or  descendant,  or  other  relative 
[see  Code,  §  2422],  it  shall  be  lawful  for  the  circuit  or  cor- 
poration courts,  upon  a  bill  filed  by  the  person  holding  the 
estate  subject  to  such  limitation,  in  which  bill  all  persons 
then  living  and  contingently  interested  shall  be  made  de- 
fendants, to  decree  a  sale  of  such  estate,  real  or  personal, 
and  to  invest  the  proceeds  of  sale  under  the  decree  of  the 
court,  for  the  use  and  benefit  of  the  person  so  holding  the 
estate,  subject  to  the  limitations  of  the  deed  or  will  creating 

unite  the  lord  and  tenant  by  ties  of  mutual  interest  and  affection; 
and  nothing  could  so  effectually  defeat  this  end  as  a  constant 
change  in  the  parties  sustaining  that  relation.  The  proper  method, 
therefore,  of  explaining  our  laws,  is  not  to  set  out  with  the  no- 
tion that  every  subject  of  property  may  be  aliened  at  pleasure; 
and  then  to  endeavor  to  explain  why  certain  kinds  of  property 
cannot  be  aliened,  or  can  be  aliened  only  in  some  modified  man- 
ner. The  law  itself  began  in  another  way.  When,  and  in  that 
manner,  different  kinds  of  property  gradually  became  subject  to 
different  modes  of  alienation,  is  the  matter  to  be  explained;  and 
this  explanation  we  have  endeavored,  in  proceeding,  as  far  as 
possible  to  give.  But  as  to  such  interests  as  remained  inalien- 
able, the  reason  for  their  being  so  was  that  they  had  not  been 
altered  but  remained  as  they  were.  The  statute  of  Quia  Emptores 
(IS  Edw.  I.,  c.  1),  expressly  permitted  the  alienation  of  lands  and 
tenements — an  alienation  which  usage  had  already  authorized; 
and  ever  since  this  statute,  the  ownership  of  an  estate  in  land 
(an  estate  tail  excepted)  has  involved  in  it  an  undoubted  power 
of  conferring  on  another  person  the  same,  or,  perhaps  more 
strictly,  a  similar  estate.  But  a  contingent  remainder  is  no  es- 
tate; it  is  merely  the  chance  of  having  one,  and  the  reason  why 
it  so  long  remained  inalienable  at  law  was  simply  because  it  had 
never  been  thought  worth  while  to  make  it  alienable." 


§§  191, 192]  REMAINDERS.  219 

the  estate;  provided,  however,  that  the  bill  of  the  plain- 
tiff shall  set  forth  the  facts  which,  in  his  opinion,  would 
justify  the  sale  of  the  said  estate,  to  be  verified  by  the  affidavit 
of  the  party.'"'  For  further  procedure,  see  §§  2133-'35.  And 
by  §  2136 :  "The  decree  rendered  in  such  suit  shall  be  as 
binding  on  all  persons  who  may  be  born  thereafter,  and 
become  interested  in  the  said  estate,  in  like  manner,  and  to 
the  like  extent,  as  it  is  upon  the  parties  to  the  suit."  See  2 
Min.  Ins.  (4th  ed.),  422;  Faulkner  v.  Davis,  18  Grat.  651; 
Troth  v.  Robertson,  78  Va.  16.  Knotts  v.  Stearns,  91  U.  S. 
638;  Miller  v.  Texas,  &c.  R.  Co.,  132  IT.  S.  662.  And  see 
Acts  1897-'98,  c.  358,  p.  101,  authorizing  the  sale  by  decree 
of  court  of  "an  estate,  real  or  personal,  given  by  deed  or  will 
to  any  person  for  his  life,  or  the  life  of  another,  with  vested 
remainder  to  another,  whether  the  remainderman  be  an  in- 
fant or  adult."  And  see  Code  Va.,  §  2616,  et  seq.  providing 
for  the  sale  by  a  court  of  chancery  of  the  estate  of  minors 
and  insane  persons,  "whether  the  estate  of  the  minor  or 
insane  person,  or  of  any  of  the  persons  interested,  be  absolute 
or  limited,  and  whether  there  be  or  be  not  limited  thereon 
any  other  estate,  vested  or  contingent."  As  to  a  sale  in  a 
suit  for  partition,  see  Carneal  v.  Lynch,  91  Va.  114;  C.  V. 
§  2562. 

§  192.    Words  of  Limitation  and  Words  of  Purchase. — A 

'purchaser,  in  the  technical  sense  of  the  term,  is  one  who 
acquires  real  estate  otherwise  than  by  descent,  as,  for  ex- 
ample, by  deed  or  devise.  And  ivords  of  purchase  are  those 
which  describe  the  person  or  persons  named  in  a  deed  or 
devise  to  whom  the  estate  is  given,  and  in  whom  it  attaches 
or  commences.  "Words  of  purchase  are  descriptio  personarum, 
and  designate  the  grantees  in  a  deed,  or  the  objects  of  a 
testator's  bounty  in  a  devise.  On  the  other  hand,  words  of 
limitation  serve  only  to  limit  or  define  the  estate  or  degree 
of  interest  conferred  on  those  who  are  designated  by  the 
words  of  purchase.  Thus,  in  a  deed  "To  A  and  his  heirs," 
"A"  is  the  word  of  purchase,  and  "heirs"  is  a  word  of  limi- 


220  REAL    PROPERTY.  [Chap.  10 

tation,  whereby  A's  estate  is  made  a  fee  simple.  But  in  a 
deed,  "to  A  for  life,  remainder  to  the  heirs  of  B,"  the  word 
"heirs"  is  a  word  of  purchase,  because  it  is  descriptive  of 
those  who  are  to  take  the  land  on  A's  death.  Yet  in  a  deed 
"To  A  for  life,  remainder  to  the  heirs  of  A,"  the  word  "heirs" 
is  a  word  of  limitation,  and  not  of  purchase,  as  we  shall 
see  in  the  next  section.  In  the  language  of  Fearne  (79)  : 
"When  the  words  "heirs,"  etc.,  operate  only  to  expand  an 
estate  in  the  ancestor,  so  as  to  let  the  heirs  described  into  its 
extent,  and  entitle  them  to  take  derivatively  through  or  from 
him  as  he  root  of  succession,  or  person  in  whom  the  estate 
is  considered  as  commencing,  they  are  properly  words  of 
limitation ;  but  when  they  operate  only  to  give  the  estate 
imported  by  them  to  the  heirs  described  originally,  and  as  the 
persons  in  whom  that  estate  is  considered  as  commencing, 
and  not  derivatively  from  or  through  the  ancestor,  they  are 
properly  words  of  purchase." 

§  193.  The  Rule  in  Shelley's  Case. — This  is  by  way  of  ex- 
ception to  Fearne's  Fourth  Class  of  contingent  remainders, 
and  its  effect  is  that  in  the  limitation,  "To  A  for  life,  re- 
mainder to  the  heirs  of  A,"  the  heirs  of  A  do  not  take  a 
remainder  at  all,  either  vested  or  contingent,  but  the  word 
"heirs"  serves  as  a  word  of  limitation  to  give  A  the  fee 
simple.  The  Eule  in  Shelley's  Case  is  as  follows.  When- 
ever the  ancestor  by  any  gift  or  conveyance  takes  an  estate 
of  freehold  in  lands  or  tenements,  and  in  the  same  gift  or 
conveyance  an  estate  is  afterwards  limited  by  way  of  re- 
mainder, either  mediately  or  immediately,  to  his  heirs  or 
the  heirs  of  his  body,  the  words  "heirs"  or  "heirs  of  his 
body"  are  words  of  limitation  of  the  estate,  carrying  the 
inheritance  to  the  ancestor  in  fee  simple  or  fee  tail,  and  not 
words  of  purchase  creating  a  contingent  remainder  in  the 
heirs  or  heirs  of  the  body.  An  example  of  the  immediate 
operation  of  the  rule  is  given  above,  where  "To  A  for  life, 
remainder  the  heirs  of  A,"  gives  A  the  fee  simple.  So  "To 
A  for  life,  remainder  to  the  heirs  of  the  body  of  A,"  gives 


§§  192-194]  REMAINDERS.  221 

A  a  fee  tail.  The  rule  operates  mediately  in  the  examples, 
"To  A  for  life,  remainder  to  B  for  life,  remainder  to  the 
heirs  of  A,"  or  "To  A  for  life,  remainder  to  B  for  life,  re- 
mainder to  the  heirs  of  the  body  of  A,"  and  A  takes  in  the 
one  case  a  fee  simple,  and  in  the  other  a  fee  tail,  subject, 
however,  to  the  intermediate  life  estate  vested  in  B.  Shelley's 
Case,  1  Co.  93;  2  Tho.  Co.  (143);  2  Min.  Ins.  (4th  ed.; 
400;  11  Am.  St.  B.  100,  note;  45  Id.  194,  note. 

§  194.  The  Five  Requisites  to  the  Operation  of  the  Rule 
in  Shelley's  Case.— See  Chipps  v.  Hall,  23  W.  Va.  504,  513. 

(1).  There  must  be  an  estate  of  freehold  in  the  ancestor, 
or,  as  he  is  sometimes  loosely  called,  the  first  taker. 

(2).  The  ancestor  must  take  the  estate  of  freehold  by  or 
in  consequence  of  the  same  conveyance  which  contains  the 
limitation  as  to  his  heirs. 

(3).  The  word  "heirs"  must  be  used  in  its  technical  sense, 
as  importing  a  class  of  persons  to  take  indefinitely  in  suc- 
cession. Hargrave,  1  Law  Tracts,  575.  See  De  Vaughn 
v.  Hutchinson.  165  IT.  S.  566,  578,  where  it  is  said:  "The 
word  'heirs,'  in  order  to  be  a  word  of  limitation,  must  in- 
clude all  the  persons  in  all  generations  belonging  to  the  class 
designated  by  the  law  as  'heirs.' " 

(4).  The  interests  limited  to  the  ancestor  and  to  his  heirs 
must  be  of  the  same  quality,  i.  e.,  both  legal  or  both  equitable ; 
for  otherwise  they  could  not  coalesce  to  form  one  estate  in 
the  ancestor.  Green  v.  Green,  23  Wall.  486;  2  A7a.  Law. 
Beg.  39. 

(5).  The  estate  limited  to  the  "heirs"  or  "heirs  of  the 
body,"  must  be  limited  by  way  of  remainder.  Fearne,  Re- 
mainders, (276);  2  Min.  Ins.  (4th  ed.)  437;  Hawthorne  v. 
BecTcioith,  89  Va.  786.1 

1  Rationale  of  the  Rule  in  Shelley's  Case. — Fearne  thus  ex- 
plains (Contingent  Remainders,  200)  the  principle  upon  which 
the  limitation,  after  a  life  estate  to  the  ancestor,  of  a  remainder 
to  his  heirs  or  heirs  of  the  body,  in  the  technical  sense,  gives  the 


222  REAL    PROPERTY.  [Chap.  10 

§  195.  Origin  of  the  Rule  in  Shelley's  Case. — On  this  sub- 
ject there  are  various  theories.  See  Tied.  R.  P.  §  433,  and 
notes;  22  Am.  &  Eng.  Ency.  Law,  494,  note;  2  Bl.  Com. 
(Sharswood's  Ed.)  (173),  note  12;  2  Bl.  Com.  (Cooley's 
Ed.)   (172),  note  11.     Some  of  the  theories  are  as  follows: 

(1).  That  the  rule  is  of  feudal  origin,  and  was  introduced 

inheritance  to  the  ancestor  and  nothing  to  the  heirs,  etc.,  unless 
by  descent  from  him  as  pars  antecessoris : 

"If  the  testator  meant,  according  to  the  terms  of  the  proposi- 
tion, that  the  person  who  should  take  after  the  tenant  for  life 
should  be  any  person  indiscriminately  answering  the  description 
of  heir,  etc.,  of  such  first  taker,  and  entitled  only  in  respect  of 
such  description;  and  that  all  other  persons  successively  succeed- 
ing to  the  same  description  should  eo  nomine,  and  by  virtue  only 
of  such  relation  to  the  ancestor,  equally  succeed  to  the  estate;  it 
follows  that  he  could  not  have  any  particular  object  of  attention 
among  all  this  unknown  class  of  successors,  much  less  any  prefer- 
ence of  any  one  of  them  to  that  stock  or  source  from  which  his 
bounty  reaches  them  only  by  emanation,  as  it  were. 

"The  disposition,  in  its  progress  to  heirs,  etc.,  at  large,  is  only 
a  modified  extension  of  the  gift  to  the  ancestor,  the  immediate 
and  sole  known  object  of  the  testator's  favor,  in  relation  to  whom 
alone  the  eventual  ulterior  takers  can  bring  themselves  within 
the  track  of  his  notice.  What  ground  have  we,  then,  to  ascribe 
to  the  testator  any  impulse  of  distinction  among  such  equally  un- 
ascertained accessory  objects  of  his  view?  What  pretence  for  in- 
ferring any  such  preference  of  any  one  individual  of  them  to  the 
rest,  and  even  to  the  ancestor  himself,  as  to  intrust  that  one  with 
the  power  of  defeating  the  succession  to  all  the  rest  while  it  is 
denied  to  their  common  ancestor?     . 

"The  law  imposes  the  dilemma  of  committing  such  power  either 
to  the  ancestor  or  to  his  next  heir;  will  any  reasonable  inference 
of  the  testator's  intention  in  the  matter  induce  the  preference  of 
an  unknown  derivative  character,  accidentally  meeting  the  terms 
of  a  general  description,  to  the  original  attractive  object,  the 
ground  work  of  the  testator's  bounty,  and  to  which  the  attend- 
ant relative  designations  seem  mere  appendages?  If  not,  there  is 
no  more  apparent  violence  offered  to  the  testator's  presumable 
intention  by  vesting  the  inheritance  in  the  ancestor  than  in  his 
first  heir,  whenever  that  heir  is  not  distinguished  from  the  rest, 
but  all  heirs  of  the  description  used  appear  to  be  equally  in  his 
contemplation." 


§195]  REMAINDERS.  223 

to  prevent  fraud  upon  tenure;  for  if  the  heir  had  been  held 
to  take  by  purchase,  he  would  not,  upon  the  death  of  the 
ancestor,  have  been  liable  to  the  burdens  imposed  upon  a 
descent,  and  the  lord  would  have  been  prejudiced  by  the 
loss  of  relief,  wardship,  marriage,  and  other  fruits  of  tenure. 

(2).  That  the  rule  was  intended  to  benefit  the  heir  by 
giving  his  ancestor  an  estate  of  inheritance  (to  which  the 
heir  would  be  entitled  by  descent),  instead  of  giving  the 
heir  himself  a  contingent  remainder,  liable  to  destruction 
by  forfeiture  or  by  merger. 

(3).  That  the  rule  was  intended  to  prevent  the  abeyance 
of  the  fee  simple. 

(4).  That  the  rule  was  intended  to  facilitate  the  alienation 
of  land,  by  giving  the  ancestor  a  fee  simple,  instead  of  a 
life  estate  with  a  contingent  remainder  to  his  heirs. 

(5).  That  the  rule  was  introduced  prior  to  the  time  at 
which  a  contingent  remainder  was  allowed  by  law,  and  so 
was  intended  to  favor  the  ancestor  and  heir  both,  by  giving 
the  ancestor  an  estate  of  inheritance  which  would  descend 
to  the  heir,  instead  of  giving  the  ancestor  a  life  estate  only, 
and  the  heir  nothing  either  by  purchase  or  by  descent.  Wins. 
E.  P.  (17th  ed.)  -ill,  note  (e)  ;  Gray,  Rule  against  Perpe- 
tuities, §  100.1 

1  In  Williams,  Real  Property  (17th  ed.),  398,  this  explanation  is 
offered  of  the  Rule  in  Shelley's  Case:  "We  have  seen  that,  ac- 
cording to  the  feudal  law,  the  grantee  of  an  hereditary  fief  was 
considered  as  being  entitled  during  personal  enjoyment  only, 
that  is,  for  his  life,  while  his  heir  was  regarded  as  having  been 
endowed  with  a  substantial  interest  in  the  land.  And  these  con- 
ceptions seem  to  have  been  imported  into  the  English  law  along 
with  the  principle  of  tenure.  In  early  times  after  the  Conquest, 
therefore,  if  a  grant  of  land  was  made  to  a  man  and  his  heirs, 
his  heirs,  on  his  death,  became  entitled;  and  it  was  not  in  the 
power  of  the  ancestor  to  prevent  the  descent  of  the  estate  ac- 
cordingly. He  could  not  sell  it  without  the  consent  of  his  lord; 
much  less  could  he  then  devise  it  by  his  will.  The  ownership  of  a 
fee  simple  was  then  but  little  more  advantageous  than  the  pos- 
session of  a  life  interest  at  the  present  day.     ...     A  tenant 


224  REAL    PROPERTY.  [Chap.  10 

§  186.  The  Inflexible  Character  of  the  Rule  in  Shelley's 
Case. — It  is  a  rule  of  law,  and  if  the  five  requisites  above  laid 
down  are  present,  its  operation  is  not  prevented  even  by 
express  words  in  the  deed  or  will  declaring  that  it  shall  not 
operate.  In  other  language,  the  requisites  being  present,  the 
Eule  in  Shelley's  Case  will  not  yield  to  the  intention,  how- 
ever plainly  expressed,  but  will  operate,  though  the  intention 
(even  in  a  will)  be  manifestly  defeated.  Thus  in  the  great 
case  of  Perrin  v.  Blake,  4  Burr.  (2579),  the  testator  declared 
his  intention  to  be  that  his  son  should  not  sell  or  dispose  of 
his  estate  for  longer  than  his  life;  and  to  that  intent  he 
devised  the  same  to  his  son  for  life,  and  after  his  death,  to 
the  heirs  of  the  body  of  the  said  son.  The  Court  of  King's 
Bench  held  that  the  son  only  took  an  estate  for  his  life,  but 
this  decision  was  reversed  by  the  Court  of  Exchequer  Cham- 
ber; and  it  is  now  well  settled  that  the  son  took  an  estate 
tail  by  the  Bule  in  Shelley's  Case,  notwithstanding  the  testa- 
tor's manifest  intention  to  the  contrary.  For  all  the  requisites 
for  the  operation  of  the  rule  are  present,  a  freehold  in 
the  ancestor  (testator's  son),  and  by  the  same  conveyance 
an  estate  given  to  the  heirs  of  the  body  of  the  ancestor  (the 
son)  by  way  of  remainder;  and  the  words,  "heirs  of  the 
body,"  are  used  in  their  technical  sense,  as  importing  a  class 
of  persons  to  take  indefinitely  in  succession,  and  both  estates, 
viz. :  that  to  the  son  and  that  to  the  heirs  of  the  body,  are  of 
the  same  quality,  both  being  legal.  Under  these  circum- 
stances, the  rule  must  operate,  and  the  estates  to  the  ancestor 

in  fee  simple  was  accordingly  a  person  who  held  to  him  and  his 
heirs;  that  is,  the  land  was  given  to  him  to  hold  for  his  life,  and 
to  his  heirs  to  hold  after  his  decease.  It  cannot,  therefore,  be 
wondered  at  that  a  gift  expressly  in  these  terms,  'To  A  for  his 
life,  and  after  his  decease  to  his  heirs,'  should  have  been  an- 
ciently regarded  as  identical  with  a  gift,  'To  A  and  his  heirs,' 
that  is,  a  gift  in  fee  simple.  Nor  if  such  was  the  law  formerly, 
can  it  be  a  matter  of  surprise  that  the  same  rule  should  have  con- 
tinued to  prevail  up  to  the  present  time.  Such,  indeed,  has  been 
the  case." 


§§  196-197]  REMAINDERS.  225 

and  to  his  heirs  must  coalesce  and  give  the  ancestor  an 
estate  of  inheritance,  just  as  when  fire  is  applied  to  powdeT 
an  explosion  must  follow,  in  spite  of  an  intention  to  the  con- 
trary. Hence,  the  rule  is  sometimes  spoken  of  as  tijrran- 
nical.1 

§  197.  How  can  the  Operation  of  the  Rule  in  Shelley's 
Case  be  Prevented  ? — In  the  absence  of  statute,  the  rule  must 
operate  if  all  the  requisites  are  present.  To  prevent  its 
operation,  therefore,  in  drawing  a  deed  or  will,  the  limitation 

1  Effect  of  the  Rule  in  Shelley's  Case  as  a  Rule  of  Law. — 
In  Allen  v.  Craft  (Indiana),  58  Am.  Rep.  417,  433,  it  is  said: 
"There,  is,  therefore,  no  escape  from  the  force  of  the  rule  in 
Shelley's  case,  when  the  word  'heirs'  [other  requisites  being 
present]  is  used  in  its  strict  legal  sense  as  a  word  of  limitation. 
But  the  word  'heirs'  is  not  in  every  case  a  word  of  limitation,  for 
it  may  be  employed  in  a  different  sense.  It  has  seemed  to  many 
that  there  is  a  conflict  between  the  rule  declaring  that  the  inten- 
tion of  the  testator  must  govern,  and  the  rule  in  Shelley's  case; 
but  the  appearance  of  conflict  fades  away  when  it  is  brought 
clearly  to  mind  that  when  the  word  'heirs'  is  used  as  a  word 
of  limitation,  it  is  treated  as  conclusively  expressing  the  inten- 
tion of  the  testator.  Where  is  appears  that  the  word  was  so  used, 
the  law  inexorably  fixes  the  force  and  meaning  of  the  instrument. 
If  once  it  is  granted  that  the  word  was  used  in  its  strict  legal 
sense,  nothing  can  avert  the  operation  of  the  rule  in  Shelley's 
case.  So  the  inquiry  is,  Was  the  word  used  as  one  of  limitation? 
It  is  because  the  word  'heirs'  is  not  used  in  its  legal 
sense  that  the  courts  do  not  apply  the  rule  in  Shelley's  case;  for 
when  it  is  so  used  the  rule  must  be  applied."  And  see  11  Am.  St. 
R.  100-107,  note;  20  Id.  909;  45  Id.  186. 

In  a  notice  of  the  recent  English  case  of  Van  Orutten  v.  Fo  - 
well  [1897],  A.  C.  658,  it  is  said  in  a  note  by  Sir  Frederick  Pol- 
lock, in  the  Law  Quarterly  Review  (London),  January,  1898,  p.  1: 
"The  rule  stands  firm,  notwithstanding  strenuous  assault,  as  a 
rule  of  law  which  is  quite  independent  of  the  settlor's  intention. 
If  a  testator  said  in  so  many  words,  'The  rule  in  Shelley's  case 
shall  not  apply  to  any  limitations  contained  in  this  my  will,'  it 
[i.  e.,  the  testator's  declaration  of  intention]  would  be  merely  in- 
operative. There  may  be  cases  where  'heirs,'  or  like  words,  are 
clearly  shown  by  the  immediate  context  to  have  an  unusual  sense, 

15 


226  REAL    PROPERTY.  [Chap.  10 

must  be  so  expressed  as  not  to  contain  all  the  requisites;  for 
if  any  one  requisite  is  absent,  the  rule  is  powerless.  Thus  the 
deed  or  will  might  be  so  drawn  as  to  make  the  ancestor  take 
the  legal  title,  while  the  estate  of  the  heirs  is  made  equitable, 
or  vice  versa;  or  the  freehold  to  the  ancstor  might  be  given 
by  deed  in  the  testator's  lifetime,  and  the  estate  to  the  heirs 
be  given  afterwards  by  a  will,  so  that  the  ancestor  and  the 
heirs  would  take  by  different  conveyances.  Another  method 
would  be  not  to  use  the  word  "heirs"  in  its  technical  sense, 
as  importing  a  "class  of  persons  to  take  indefinitely  in  suc- 
cession," but  in  a  limited  and  restricted  sense,  as  embracing 
less  than  the  whole  line  of  heirs  in  indefinite  succession,  and 

which  makes  them  words  of  designation  and  not  of  limitation. 
Such  cases  do  not  form  an  exception  to  the  rule,  for  when  a  dis- 
tinct special  meaning,  ascertained  by  the  special  context,  is  clear 
to  the  court,  and  is  read  in  place  of  the  words  so  qualified,  there 
is  nothing  to  which  the  rule  could  apply." 

In  some  of  the  American  States  the  rule  in  Shelley's  case  is 
treated  not  as  a  rule  of  law,  but  as  a  legal  rule  of  construction, 
and  so  liable  to  yield  to  the  intention  of  the  testator,  apparent 
on  the  face  of  the  will,  that  the  rule  shall  not  apply.  Thus  in 
Wescott  v.  Buford  (Iowa),  74  N.  W.  Rep.  18,  it  was  held  that 
when  the  testator  devised  land  to  A  for  life,  remainder  to  his 
heirs,  the  rule  did  not  apply:  and  that  A  took  only  a  life  estate. 
Commenting  on  this  decision,  it  is  said  in  12  Harvard  Law  Re- 
view (May,  1898),  p.  64:  "The  court  rests  its  decision  on  the 
ground  that  a  strict  application  of  the  rule  in  Shelley's  case 
would  defeat  the  intention  of  the  testator  as  to  the  life  estate  to 
A.  As  was  conclusively  shown  in  Van  Grutten  v.  Foxwell  [1897] 
A.  C.  658,  the  rule  in  Shelley's  case  is  not  a  rule  of  construction, 
but  an  absolute  rule  of  property.  Its  object,  it  may  be  said,  is 
to  defeat  the  intentions  of  the  testator  when  they  run  counter  to 
it.  Rules  of  construction  may  be  employed  to  discover  what  he 
meant  by  the  word  'heirs.'  If  it  means  a  particular  class,  the 
rule  does  not  apply.  If  it  means  heirs  in  a  general  sense,  as  it 
did  in  the  principal  case,  the  rule  should  be  applied,  notwith- 
standing the  intention  of  the  testator.  The  harshness  of  the  rule, 
which  influenced  the  decision  in  the  principal  case,  while  it  may 
be  a  good  reason  for  its  abolition,  furnishes  no  excuse  for  con- 
struing it  into  something  which  it  is  not." 


§§197,198]  REMAINDERS.  227 

son  or  persons  shall  take  the  said  land  under  that  descrip- 
as  being  confined  to  such  persons  only  as  should  answer  that 
description  at  a  designated  time;  as  e.  cj.,  at  the  time  of  the 
ancestor's  death.  Thus  in  Taylor  v.  Clearij,  29  Grat.  448, 
a  deed  made  in  1821  conveyed  land  "To  A  for  and  during 
his  life  only,  and  after  A's  death  the  said  land  to  go  to  such 
person  or  persons  as  should  at  that  time  answer  the  descrip- 
tion of  heir  or  heirs-at-law  of  the  said  A;  and  such  per- 
tion  as  purchasers,  under  and  by  virtue  of  this  deed,  and 
not  by  inheritance  as  the  heirs  of  said  A";  and  it  was  held 
that  A  took  but  a  life  estate  in  the  land,  and  that  the  per- 
sons who  at  the  time  of  A's  death  answered  the  descrip- 
tion of  A's  heirs  took  as  purchasers  under  the  deed.  The 
ground  of  the  decision  was  not  the  intention  of  the  grantor 
as  manifested  by  saying,  "To  A  for  and  during  his  life  only," 
and  by  saying  that  the  heirs  should  take  the  land  as  pur- 
chasers; but  the  ground  was  that  the  word  "heirs"  was  not 
used  in  its  technical  sense,  and  so  one  of  the  requisites  for 
the  operation  of  the  rule  was  not  present.  For  a  case  similar 
to  Taylor  v.  Cleary,  see  Earnhart  v.  Earnhart,  127  Ind.  397 
(22  Am.  St.  Eep.  652).  And  see  Daniel  v.  Whartenby,  17 
Wall.  639;  Be  Vaughn  v.  Hutchinson,  165  U.  S.  566;  Stokes 
v.  Van  Wycl;  83  Va.  724;  Wallace  v.  Minor,  86  Va.  550 
(criticised  by  Judge  Burks  in  2  Va.  Law  Reg.,  p.  28)  ;  Nye 
v.  Lovitt,  92  Ya.  710;  Nichols  v.  Gladden  (¥.  C),  23  S.  E. 
459;  53  Am.  Dec.  474,  note. 

§  198.  Status  of  the  Rule  in  Shelley's  Case  in  the  United 
States. — The  rule  has  been  abolished  in  many  of  the  States, 
but  it  is  still  in  force  in  others.  See  Polk  v.  Faris,  9  Yerger 
(Tenn.),  209  (30  Am.  Dec.  400,  and  note  415-'17) ;  Hawk- 
ins on  Wills  (2d  Am.  ed.),  184,  n.  2.  In  Virginia  the  rule 
is  now  supposed  to  be  totally  abolished,  but  it  died  hard, 
and  the  first  attempt  to  kill  it  only  "scotched  the  snake." 
The  Virginia  legislation  is  given  in  the  next  section. 


228  REAL    PROPERTY.  [Chap.  10 

§  199.  Virginia  Statutes  Intended  to  Abolish  the  Rule  in 
Shelley's  Case. 

(1).  First  statute.  By  statute  taking  effect  July  1,  1850, 
it  was  enacted :  "Where  any  estate,  real  or  personal,  is  given 
by  deed  or  will  to  any  person  for  his  life,  and  after  his 
death  to  his  heirs  or  the  heirs  of  his  body,  the  conveyance 
shall  be  construed  to  vest  an  estate  for  life  only  in  such 
person,  and  a  remainder  in  fee  simple  in  his  heirs  or  the 
heirs  of  his  body."  Code,  1849,  ch.  116,  §  11.  But  this 
attempt  to  abolish  the  rule  was  ineffectual  in  two  cases, 
and  in  them  the  rule  still  applied,  as  is  shown  below  under 
(a)  and  (b). 

(a).  The  language  of  the  statute  is,  "Where  any  estate 
...  is  given  by  deed  or  will  to  any  person  for  his  life." 
Now  suppose  the  limitation  is,  "To  A  for  the  life  of  B,  re- 
mainder to  the  heirs  of  A."  This  is  not  to  A  for  his  life, 
but  to  A  for  the  life  of  another  (pur  autre  vie),  and  the 
case  is  not  within  the  statute,  and  so  the  rule  operated  as  at 
common  law,  giving  A  the  fee  simple. 

(&).  Again  the  statute  declares:  "The  conveyance  shall 
be  construed  to  vest  an  estate  for  life  only  in  such  persons, 
and  a  remainder  in  fee  simple  in  his  heirs  or  the  heirs  of  Ms 
body."  But  suppose  no  remainder  can  vest  in  the  "heirs 
or  heirs  of  the  body";  then  does  the  ancestor  take  only  a 
life  estate,  and  the  heirs  or  heirs  of  the  body  nothing,  or 
does  the  rule  operate  as  at  common  law  and  give  the  ancestor 
a  fee  simple,  or  a  fee  tail,  as  the  case  may  be?  It  was  held 
that  the  staute  did  not  apply,  and  that  the  rule  still  operated 
in  any  case  in  which  the  remainder  for  any  reason  could  not 
actually  vest  in  the  heirs,  or  heirs  of  his  body.  Thus  in 
Hood  v.  Haden,  82  Va.  588,  there  was  a  power  of  appoint- 
ment conferred  on  X  to  devise  land  to  A,  but  not  to  the  issue 
of  A.  X  devised  the  land  "To  A  for  life,  and  after  A's  death, 
remainder  to  the  issue  of  A"  ("issue"  in  a  will  being  equiva- 
lent to  "heirs  of  the  body").  Now  under  the  power  X  can 
appoint   lawfully   to   A   only,   and  the   appointment   to   A's 


§  199]  REMAINDERS.  229 

issue  as  purchasers,  to  take  in  their  own  right  under  the 
devise,  is  void,  and  so  no  remainder  can,  as  the  statute  directs, 
vest  in  the  issue  of  A.  Then  what  estate  shall  A  take  ?  Held, 
that  as  the  statute  could  not  perform  its  double  purpose  of 
giving  the  issue  a  remainder,  as  well  as  conferring  on  A  a  life 
estate,  it  had  no  application  at  all  to  such  a  case,  and  so  the 
Rule  in  Shelley's  Case  gave  A  a  fee  tail,  as  it  would  have 
done  before  the  statute  was  passed. 

(2).  Second  statute.  By  statute  taking  effect  May  1,  1888, 
drawn  by  Judge  E.  C.  Burks,  it  is  now  enacted  as  follows 
(C.  V.,  §  2423)  :  "Wherever  any  person,  by  deed,  will  or 
other  writing,  takes  an  estate  of  freehold  in  land,  or  takes 
such  an  estate  in  personal  property  as  would  be  an  estate  of 
freehold  if  it  were  an  estate  in  land,  and  in  the  same  deed, 
will,  or  other  writing,  an  estate  is  afterwards  limited  by  way 
of  remainder,  either  mediately  or  immediately,  to  his  heirs, 
or  the  heirs  of  his  body,  or  his  issue,  the  words  "heirs,"  "heirs 
of  his  body,"  and  "issue,"  or  other  words  of  like  import  used 
in  the  deed,  will,  or  writing,  in  the  limitation  therein  by  way 
of  remainder,  shall  not  be  construed  as  words  of  limitation, 
carding  to  such  person  the  inheritance  as  to  the  land,  or  the 
absolute  estate  as  to  the  personal  property,  but  they  shall 
be  construed  as  words  of  purchase,  creating  a  remainder  in 
the  heirs,  heirs  of  the  body  or  issue.1 

By  this  statute  it  is  thought  that  the  Rule  in  Shelley's 
Case  is  at  last  entirely  abrogated  in  Virginia.  See  2  Va. 
Law.  lleg.,  38,  where  it  is  said  in  a  note  by  Judge  Burks : 
"That  rule  [in  Shelley's  Case]  was  not  abolished  [in  Vir- 
ginia] until  the  Code  of  1849,  and  then  not  completely.  It 
is  believed  that  the  abrogation  is  completed  by  §  2123  of  the 
present  Code." 

1  Remainder  to  Heirs,  Heirs  of  the  Body,  or  Issue. — The  ques- 
tion arises  under  the  statute  abolishing  the  rule  in  Shelley's  case, 
as  to  the  nature  of  the  remainder,  whether  vested  or  contingent, 
which  is  created  by  the  statute  in  the  heirs,  heirs  of  the  body, 
or  issue,  as  purchasers.  As  to  the  heirs  and  heirs  of  the  body,  it 
would  seem  clear  that  by  the  definition  of  a  vested  remainder 


230  REAL    PROPERTY.  [Chap.  10 

§  200.  Interpretation  of  the  Words  "Heirs,"  "Heirs  of  the 
Body,"  "Issue,"  and  "Children." 

(1).  "Heirs."  The  technical  meaning  of  the  word  "heirs" 
imports  a  "class  of  persons  to  take  indefinitely  in  succes- 
sion," and  this  is  the  primary  sense  of  the  word  in  both 
wills  and  deeds.  It  is  therefore  a  word  of  limitation,  and 
not  a  word  of  purchase.  And  the  same  is  true  of  the 
words,  heirs  of  the  body.     But  if  the  intention  be  manifest 

heretofore  given  (ante,  §  —  and  note),  the  remainder  to  them  is 
contingent,  and  cannot  vest  in  them  until  they  are  ascertained 
by  the  death  of  the  ancestor.  And  see  this  view  taken  in  Gray, 
Rule  against  Perpetuities,  §  107;  Tiedeman,  Real  Prop.,  §  433, 
n.  1  on  p.  346.  But  in  Moore  v.  Littell,  41  N.  Y.,  66,  it  was  held 
that  since  the  abrogation  of  the  rule  in  Shelley's  case,  a  grant 
"To  A  for  life,  and  after  his  decease,  to  his  heirs  and  their  as- 
signs forever,"  gave  to  the  children  of  A  a  vested  interest  in  the 
land,  though  liable  to  open  and  let  in  after-born  children  of  A; 
and  liable  also,  in  respect  to  the  interest  of  any  child,  to  be 
wholly  defeated  by  his  death  before  his  father,  thus  treating  the 
condition  of  survivorship  as  subsequent  instead  of  precedent. 
From  this  conclusion,  three  of  the  justices  dissented;  and  if  ten- 
able, it  must  be  by  reason  of  the  statutory  definition  of  remain- 
ders in  New  York,  assuming  it  to  change  the  doctrine  of  the  com- 
mon law,  and  on  the  supposition  that  there  was  no  ground  of 
forfeiture  by  which  A's  estate  might  end  in  his  lifetime. 

By  the  New  York  Revised  Statutes,  under  which  Moore  v.  Lit- 
tell was  decided,  it  is  declared:  "Future  estates  are  either  vested 
or  contingent.  They  are  vested  when  there  is  a  person  in  being 
who  would  have  an  immediate  right  to  the  possession  of  the 
lands  upon  the  ceasing  of  the  intermediate  or  precedent  estate. 
They  are  contingent  whilst  the  person  to  whom,  or  the  event 
upon  which,  they  are  limited  to  take  effect  remains  uncertain." 
Commenting  on  this  statute,  Prof.  Gray  says  (Rule  against  Per- 
petuities, §  107):  "It  is  doubtful  whether  this  piece  of  legis- 
lative definition  was  intended  to  change  the  common  law;  but 
the  courts  [of  New  York]  have  decided,  and  it  would  seem,  cor- 
rectly, that  it  has  done  so.  And  it  would  seem  that  the  adoption 
of  this  view  necessitates  the  decisions  of  the  Court  of  Appeals, 
which  at  first  appear  rather  startling,  that  since  the  abolition  of 
the  rule  in  Shelley's  case,  a  remainder  to  heirs  after  a  life  estate 
to  the  ancestor  is  vested."    On  the  other  hand,  Prof.  Tiedeman 


§  200]  REMAINDERS.  231 

not  to  use  the  word  "heirs"  in  its  technical  sense,  but  in 
the  sense  of  "certain  persons  answering  that  description 
at  a  certain  time"   (i.  e.,  less  than  the  ivlwle  line  of  heirs), 

(Real  Prop.,  §  433,  note  1)  says:  "This  remarkable  decision  is 
altogether  inconsistent  with  the  rules  of  the  law  of  remainders, 
and  even  with  the  New  York  statutory  definition  of  a  contingent 
remainder,  viz.,  that  they  are  contingent  'whilst  the  person  to 
whom,  or  the  event  upon  which,  they  are  limited  to  take  effect 
remains  uncertain.'  " 

It  may  be  observed  that  the  Virginia  Code  of  1849,  ch.  116,  §  11, 
in  abolishing  the  Rule  in  Shelley's  Case,  declared,  "the  convey- 
ance shall  be  construed  to  vest  an  estate  for  life  only  in  such 
person,  and  a  remainder  in  fee  simple  in  his  heirs  or  the  heirs 
of  his  body";  and  upon  the  word  "vest,"  it  has  been  thought  that 
the  statute  negatived  a  contingent  remainder.  But  the  Code  of 
1887  declares  that  the  words  "heirs,"  "heirs  of  the  body,"  or 
"issue,"  shall  be  construed  as  words  of  purchase,  creating  a  re- 
mainder in  the  heirs,  heirs  of  the  body,  or  issue. 

As  to  the  remainder  to  the  "issue,"  the  view  is  taken  in  2  Min. 
Ins.  (4th  ed.)  463,  that  when  issue  is  a  word  of  purchase,  it  is 
equivalent  to  heirs  of  the  body;  and  that  as  no  one  can  be  heir  to 
a  living  person,  a  remainder  to  the  issue  of  A  is  for  that  reason 
contingent  until  the  death  of  A.  But  the  question  there  under 
consideration  was  the  effect  in  Virginia  since  July  1,  1850,  of  the 
limitation,  "To  A  for  life,  and  if  he  die  without  issue,  to  B,"  in 
which  the  implied  remainder  in  favor  of  the  issue  of  A  is  made 
contingent  by  the  statute  of  1820,  by  which  the  implication  is  con- 
fined to  "issue  living  at  the  time  of  his  death,  or  born  to  him 
within  ten  months  thereafter."  (See  Va.  Law  Journal,  April, 
1880,  article  entitled  "Dying  without  Issue  under  Virginia  Stat- 
utes"). And  it  is  believed  that  the  maxim  nemo  est  h(cres  viventi.s 
has  no  application  to  the  word  issue;  and  that  an  estate  can  vest 
in  the  issue  of  a  living  person,  unless  the  language  of  the  will 
shows  a  contrary  intention.  It  may  also  be  remarked  that  issue 
living  at  the  death  of  a  person  may  include  a  much  larger  class 
of  objects  than  heirs  of  the  body.  Issue  when  a  word  of  limita- 
tion is  equivalent  to  heirs  of  the  body,  but  not  when  it  is  a  word 
of  purchase.  2  Jarm.  Wills  (5th  Am.  ed.),  chaps  28  and  29;  2 
Redfield  Wills,  part  II.,  chap.  1;  Hawkins  on  Wills  (2nd  Am.  ed.), 
87,  191,  197;  11  Am.  and  Eng.  Ency.  Law,  869;  Cook  v.  Cook,  2 
Vera.,  545;  In  re  Watson's  Trusts,  L.  R.,  10  Eq.,  36;  Weldon  v. 
Hoyland,  4  De  G.  F.  and  J.,  564;  Hobgen  v.  Ncale,  L.  R.,  11  Eq.,  48. 


232  REAL    FROPERTY.  [Chap.  10 

it  then  ceases  to  be  a  word  of  limitation,  and  becomes  a 
word  of  purchase,  denoting  those  who  are  to  take  for  them- 
selves nnder  the  deed  or  will.  In  Taylor  v.  deary,  29 
Grat.  448,  this  use  of  the  word  "heirs"  prevented  the  opera- 
tion of  the  Eule  in  Shelley's  Case  in  a  deed  made  in  Vir- 
ginia in  1821,  as  has  been  already  explained.  And  see 
Norris  v.  Johnston,  17  Grat.  8;  Stokes  v.  Van  Wych,  83  Va. 
724;  Wallace  v.  Minor,  86  Va.  550;  Robinson  v.  Robinson, 
89  Va.  916;  Buford  v.  North  Roanoke,  &c,  Co.,  90  Va. 
418;  Nye  v.  Lovitt,  92  Va.  710;  Reid  v.  Stuart,  13  W.  Va. 
338,  347;  Milhollen  v.  Rice,  lb.  510;  Stuart  v.  Stuart,  18 
W.  Va.  675;  Hinton  v.  Milburn,  23  W.  Va.  166;  Hard  v. 
Ashley,  117  N.  Y.  606;  Hawkins  on  Wills,  182;  2  Jarman, 
Wills  (5th  Am.  ed.),  585;  22  Am.  &  Eng.  Ency.  Law,  522 
and  note. 

(2).  "Issue."  The  word  "issue"  in  a  deed  is  not  a  word 
of  limitation.  Hence,  at  common  law,  a  deed  "To  A  and 
his  issue,"  gives  A  a  life  estate  only.  2  Bl.  Com.  (115)  ; 
Wms.  E.  P.  (17th  ed.),  177,  292;  11  Am.  &  Eng.  Ency. 
Law,  869.  At  common  law,  if  A  has  no  issue  at  the  date  of 
the  deed,  he  takes  a  life  estate,  and  after-born  issue  nothing; 
if  A  has  issue  then  living,  he  and  the  issue  take  jointly. 
11  Am.  &  Eng.  Ency.  Law,  876,  n.  1.  See  Bradford  v. 
Griffin  (S.  C),  19  S.  E.  76.  Issue  as  a  word  of  purchase 
means  all  of  a  man's  descendants,  as  of  a  certain  time.  As 
to  the  time  at  which  issue  are  to  be  ascertained,  see  p.  222, 
note  1.  But  in  a  will  issue  is  prima  facie  equivalent  to  "heirs 
of  the  body,"  and  therefore  is  a  word  of  limitation.  Hence 
a  devise  "To  A  and  his  issue,"  gives  to  A  an  estate-tail.  So 
a  devise  "To  A  for  life,  and  after  his  decease,  remainder 
to  his  issue,"  gives  A  an  estate-tail  by  the  Bule  in  Shelley's 
Case;  issue  being  a  word  of  limitation  and  not  a  word 
of  purchase.  But  though  in  a  will  "issue"  is  prima  facie 
a  word  of  limitation,  yet  this  presumption  will  be  rebutted 
if  there  is  anything  on  the  face  of  the  will  to  show  that  by  the 
word  "issue"  the  whole  line  of  descendants  in  indefinite  sue- 


§  200]  REMAINDERS.  233 

cession  was  not  intended,  but  only  certain  descendants,  as 
children  onty,  or  children  and  grandchildren  only,  or  such 
descendants  only  as  may  exist  at  a  particular  time,  as,  for 
example,  at  a  certain  person's  death.  See  Doe  v.  Collis,  4 
T.  E.  294;  Ralph  v.  Carrielc,  11  Ch.  Div.  873;  In  re 
Warren's  Trusts,  26  Id.  208;  Slater  v.  Dainger ■field,  15  M. 
&  W.  263;  Atkinson  v.  McCormick,  76  Va.  791;  Robinson  v. 
Robinson,  89  Va.  916;  32  Am.  St.  E.  736;  45  Id.  194; 
Hawkins  on  Wills,  191;  11  Am.  &  Eng.  Ency  Law,  877; 
1  L.  C.  E.  P.  97.  An  example  of  "issue"  used  as  a  word  of 
purchase  is  to  be  found  in  Wine  v.  MarJcwood,  31  Grat.  43, 
where  a  devise  "To  A  for  life,  and  if  he  die  without  issue, 
to  B  and  his  heirs,''  was  held  to  give  A  a  life  estate  onty,  with 
a  contingent  remainder  to  the  issue  of  A  living  at  his  death, 
or  born  to  him  within  ten  months  thereafter,  as  purchasers. 
The  will  bore  date  in  1856,  and  the  testator  dies  in  1865. 
(3).  "Children."  The  word  "children"  is  prima  facie  a 
word  of  purchase  when  it  ocurs  in  a  will,  and  is  not  the 
equivalent  of  "issue"  or  "heirs  of  the  body."  2  Jarman, 
Wills,  690;  3  Id.  174;  Hawkins,  Wills,  80;  5  Am.  &  Eng. 
Ency.  Law  (2d  ed.)  1092.  Indeed,  "children"  is  not  only 
prima  facie  a  word  of  purchase  in  a  will,  but  it  primarily 
signifies  descendants  of  the  first  degree  only,  and  does  not 
include  grandchildren,  unless  the  intention  to  do  so  is  mani- 
fest on  the  face  of  the  will,  or  from  the  nature  of  the  case; 
as  when  the  gift  is  to  the  children  of  a  person  dead  at  the 
elate  of  the  will,  who  has  left  no  children,  but  grandchildren 
only,  which  fact  was  known  to  the  testator.  Hawkins, 
Wills,  84;  2  Jarman,  Wills,  690;  In  re  Smith,  35  Ch.  D. 
558.  If,  therefore,  there  be  a  devise  to  the  children  of  A, 
and  there  are  both  children  and  grandchildren  of  A,  the 
children  only  of  A  take,  and  the  grandchildren  are  ex- 
cluded. See  Picl-ersgill  v.  Rodgers,  5  Ch.  D.  163 ;  In  re 
Hopkins'  Trusts,  9  Id.  131;  Miles  v.  Jarvis,  24  Id.  633; 
Matter  of  Patten,  111  N".  Y.  480;  Smith  v.  Chapman,  1  H. 


234  REAL    PROPERTY.  [Chap.  10 

&  M.  290;  Moon  v.  Stone,,  19  Grat.  130;  19  Am.  St.  R.  641; 
41  Id.  817;  53  Id.  456. 

In  a  will,  however,  (but  not,  it  seems,  in  a  deed)  the  prima 
facie  meaning  of  "children,"  as  a  word  of  purchase,  may  be 
rebutted;  and  it  may  be  considered  a  word  of  limitation, 
and  equivalent  to  heirs  of  the  body,  provided  such  con- 
struction is  required  in  order  to  effectuate  the  manifest 
intention  of  the  testator.  This  is  true  whether  the  limitation 
be  "To  A  and  his  children"  (where  there  are  children 
living  at  the  time  of  the  devise.  See  rule  in  Wild's  Case, 
infra)  ;  or  "To  A  for  life,  remainder  to  his  children"  (thus 
causing  the  operation  of  the  Eule  in  Shelley's  Case)  ;  or 
"To  A  for  life,  and  if  he  die  without  children,  to  B"  (thus 
denoting  an  indefinite  failure  of  issue).  And  in  one  case  the 
form  of  limitation,  coupled  with  an  extrinsic  fact,  changes 
the  prima  facie  meaning  of  "children,"  and  converts  it  into 
a  word  of  limitation.  This  doctrine  is  known  as  the  rule 
in  Wild's  case,  and  is  explained  in  the  next  section.  See 
Tyrone  v.  Waterford,  1  De  G.  F.  &  J.  613;  Byng  v.  Byng, 
10  H.  of  L.  Cas.  170;  5  Am.  &  Eng.  Ency.  Law  (2d  ed.), 
1093;  11  Id.  (1st  ed.)  902;  22  Id.  516;  2  Washburn  E.  P. 
560;  Tiedeman,  E.  P.,  §  434.  As  to  the  meaning  of  the 
word  "family"  (usually  equivalent  to  children),  see  Phillips 
v.  Ferguson,  85  Va.  509 ;  Stuart  v.  Stuart,  18  W.  Va.  675.1 

1The  Word  "Children"  in  a  Devise. —  (1).  Bastards.  It  is  well 
settled  in  England,  that  when  "children"  is  a  word  of  purchase, 
it  means  prima  facie  legitimate  children  only,  and  bastards  are 
excluded.  And  this  construction  will  be  adhered  to  unless  from 
the  context  of  the  will,  or  the  circumstances  of  the  case  (as  when 
there  are  only  illegitimate  children),  it  is  manifest  that  it  would 
defeat  the  intention  of  the  testator.  Hill  v.  Crook,  L.  R.,  6  H.  L. 
265;  Eaglcton  v.  Horner,  37  Ch.  D.  695;  In  Goods  of  Ashton 
(1892),  P.  83;  Hawkins,  Wills,  80;  2  Jarman,  Wills,  786.  And  the 
doctrine  is  the  same  in  the  United  States  generally.  5  Am.  & 
Eng.  Ency.  Law,  1096.  But  in  Virginia  it  is  held  in  Bennett  v. 
Toier,  15  Grat.  588,  that  upon  a  devise  to  a  daughter  for  life,  and 
at  her  death  the  property  to  be  equally  divided  among  her  chil- 
dren, an  illegitimate  child  of  the  daughter  will  take  with  her 


§§  200,  201]  REMAINDERS.  235 

§  201.  The  Rule  in  Wild's  Case. — This  is  an  ancient  rule 
of  the  common  law,  by  which,  under  certain  circumstances, 
the  word  "children"  becomes  a  word  of  limitation,  and 
equivalent  to  "heirs  of  the  body."  The  rule  in  Wild's  Case 
(6  Co.  17)   is  as  follows:  If  in  a  devise  there  be  a  limita- 

legitimate  children.  But  this  decision  is  placed  on  the  ground 
that  the  Virginia  law  of  descents,  declaring  that  "bastards  shall 
be  capable  of  inheriting  and  transmitting  inheritance  on  the  part 
of  their  mother,  as  if  lawfully  begotten"  (Code,  §  2552),  has 
changed  the  general  rule  by  giving  the  bastard  a  mother,  and 
making  him  one  of  her  children;  and  as  he  is  capable  of  taking 
by  descent  as  her  child,  he  is  also  embraced  under  a  will  by  the 
words  "her  children."  The  court  says  (p.  631):  "And  so,  adher- 
ing to  the  principle  of  the  rule,  where  the  law  makes  the  bastard 
child  of  a  woman  her  child,  endows  him  with  every  attribute  of 
a  child  born  in  wedlock,  includes  him  in  the  very  class  designated 
as  children  to  whom  her  estate  is  to  pass  in  the  event  of  her 
dying  intestate;  a  testator  speaking  of  'her  children,'  the  words 
must  be  construed  to  include  in  the  class  all  who  in  law  are  her 
children."   Moncure,  J.,  dissented. 

(2).  After-born  Children.  Whether,  when  there  is  a  devise  to 
children  as  purchasers,  those  born  after  the  death  of  the  testator 
are  entitled  to  take  as  embraced  in  the  class,  depends  upon 
whether  the  gift  to  the  children  is  immediate  or  postponed.  Thus, 
if  the  gift  be  immediate,  as  if  there  be  a  devise  to  A  and  his 
children,  and  A  has  children  at  the  death  of  the  testator,  and 
others  are  born  subsequently,  only  the  children  in  being  at  his 
death  (including  a  child  en  ventre  sa  mere)  are  entitled; 
and  after-born  children  are  excluded.  But  this  construc- 
tion is  prima  facie  only,  and  will  yield  to  the  intention;  and 
it  is  rebutted  if  the  testator  devises  "To  A  and  his  children,  born 
or  to  be  born"'  (Woodruff  v.  Pleasants,  81  Va.  37),  or  uses  any 
expressions  from  which  the  intent  to  include  after-born  children 
can  be  inferred.  See  Buford  v.  Land  Co.,  90  Va.  418,  a  case  of  a 
deed;  2  Devlin,  Deeds,  §  864.  But,  on  the  other  hand,  if  the  gift 
to  the  children  be  postponed,  as  when  the  devise  is  "to  A  for  life, 
and  after  his  death  to  the  children  of  B,"  then  the  rule  is  that 
the  word  "children"  includes  any  child  born  before  the  termina- 
tion of  the  life  estate  of  A,  although  not  in  being  at  the  death  of 
the  testator.  Here  the  remainder  vests  at  once  in  the  children 
living  at  the  death  of  the  testator,  but  will  open  and  let  in  all 
children  of  B  born  after  that  time,  but  before  the  death  of  A. 


236  REAL    PROPERTY.  [Chap.  10 

tion  "To  A  and  his  children"  and  at  the  time  of  the  devise 
A  has  children,  A  and  his  children  take  jointly  as  pur- 
chasers; but  if  at  the  time  of  the  devise  A  has  no  children, 
then  the  word  children  is  a  word  of  limitation  whereby  A 
takes  an  estate  tail,  and  not  a  word  of  purchase  whereby 
the  children  take  jointly  with  A.  But  in  order  that  A  may 
take  an  estate  tail  by  the  operation  of  this  rule,  these 
requisites  must  concur:  (a)  The  limitation  must  be  in  a 
devise;  (b)  The  form  of  the  limitation  must  be,  "To  A  and 
his  children,"  not  to  A  for  life,  remainder  to  his  children; 
and  (c)  A  must  have  no  children  at  the  time  of  the  devise. 
If  all  these  requisites  do  not  concur,  the  word  "children"''  is 
not  a  word  of  limitation,  and  so  cannot  enlarge  the  estate 
of  A  to  a  fee-tail.  But  when  these  requisites  do  concur,  the 
primary  sense  of  the  word  "children,"  which  is  issue  of 
the  first  generation,  is  displaced  by  the  rule  in  Wild's  Case, 
and  "children"  becomes  equivalent  to  "issue,"  as  embracing 
all  descendants  to  take  indefinitely  in  succession.     See  Moon 

Hamietts  v.  Hamlett,  12  Leigh,  350;  Cooper  v.  Hepburn,  15  Grat. 
551.  But  any  children  of  B  born  after  A's  death  will  be  excluded. 
And  in  this  case  the  words  "born  or  to  be  born,"  applied  to  the 
children  of  A,  will  not  alter  the  construction,  because  these  words 
are  taken  to  refer  to  children  born  between  the  death  of  the  tes- 
tator and  the  death  of  A.  See  2  Jarman,  Wills,  700-742;  Hawkins, 
Wills,  68-80;  29  Am.  &  Eng.  Ency.  Law,  410-414.  And  the  rule 
as  to  the  time  at  which  the  number  of  objects  is  to  be  ascertained 
is  the  same  as  to  all  classes  of  relations,  brothers,  nephews, 
cousins,  etc.,  including  issue  when  it  is  a  word  of  purchase.  2 
Jarman,  Wills,  703;  Hawkins,  Wills,  72.    See  p.  221,  supra. 

In  the  above  statement  of  the  law  as  to  immediate  and  future 
gifts  to  children,  it  has  been  assumed  that  there  were  one  or 
more  children  living  at  the  death  of  the  testator  or  at  the  death 
of  the  life  tenant.  But  as  to  immediate  gifts,  if  there  be  no  child 
in  esse  at  the  death  of  the  testator,  the  gift  will  embrace  all  the 
children  who  may  be  born  afterwards  by  way  of  executory  be- 
quest or  devise.  And  the  same  rule  is  applicable  to  a  future  gift, 
when  not  subject  to  the  common  law  rule  as  to  the  time  of  vest- 
ing of  contingent  remainders.  2  Jarman,  Wills,  721,  725.  See 
Code  Va.,  §  2424,  cited,  infra. 


§  201]  REMAINDERS.  237 

v.  Stone,  19  Grat.  130;  Byng  v.  Byng,  10  H.  of  L.  Cases 
121;  Clifford  v.  Roe,  5  App.  Cases  147;  Smith  v.  Fox,  82 
Ya.  763;  East  v.  Garrett,  81  Va.  523.  And  in  Clifford 
v.  Roe,  supra,  it  is  said  that  the  rule  in  Wild's  case,  if  only 
a  rule  of  construction  (and  not  a  rule  of  law,  like  the  Eule 
in  Shelley's  Case),  is  not  now  to  be  departed  from,  unless 
the  context  of  the  will  excludes  the  operation  of  the  rule.  The 
expression  "time  of  the  devise,"  seems  to  refer  to  the  date 
of  the  will,  although  it  has  been  argued  that  it  ought  to  have 
reference  to  the  state  of  things  (i.  e.,  the  existence  or  non- 
existence of  children)  at  the  death  of  the  testator,  and  not  at 
the  time  when  the  will  ivas  made.  See  3  Jarm.  AVills,  171; 
2  Min.  Ins.  (4th  ed.)  pp.  84,  85;  Hawkins  on  Wills,  198; 
11  Am.  &  Eng.  Ency.  Law,  879,  n.  I.1 

1  Time  of  the  Devise  under  the  Rule  in  Wild's  Case. — In  11 
Am.  &  Eng.  Ency.  Law,  p.  884,  note,  it  is  said:  "Under  the  rule 
in  Wild's  Case,  6  Co.  16  b,  17  a,  the  existence  of  issue  or  children 
at  the  time  the  devise  or  bequest  takes  effect,  and  not  merely  at 
the  time  it  is  made,  is  important  as  affecting  the  construction  of 
the  instrument.  Such  is  not  the  literal  language  of  all  the  cases, 
but  since  the  impossibility  of  giving  the  children  or  issue  an  es- 
tate jointly  with  their  ancestor  is  the  main  reason  for  giving 
the  ancestor  an  estate  tail,  and  as  this  impossibility  does  not  ex- 
ist if  there  are  children  or  issue  living  at  the  time  of  the  testa- 
tor's death,  whatever  might  have  been  the  case  at  the  date  of  the 
will,  the  existence  or  non-existence  of  [children]  or  issue  at  the 
death  of  the  testator,  if  the  gift  be  immediate,  would  seem  to  be 
the  important  point.  .  .  .  But  in  Goodright  v.  Wright,  1 
Strange,  25,  32,  and  Lyon  v.  Mitchell,  1  Madd.  467,  the  limitations 
were  held  to  create  estates  tail  expressly  on  the  ground  that  the 
testator  could  not  be  supposed  to  have  any  particular  affection 
for  the  issue,  there  being  none  in  esse  at  the  time  of  the  devise." 

It  will  be  observed  that  in  the  above  extract  the  rule  in  Wild's 
Case  is  treated  as  equally  applicable  whether  the  devise  be,  To  A 
and  his  children,  or  To  A  and  his  issue:  and  that  in  neither  case 
will  A  take  an  estate  tail  if  there  are  children  or  issue  at  the 
"time  of  the  devise."  See  this  view  (which  the  language  of  Wild's 
Case  would  seem  to  sustain)  contended  for  by  the  learned  author 
of  the  article  on  "Issue,"  11  Am.  &  Eng.  Ency.  Law,  881,  note  1. 
He  admits,  however,  that  "opinions  have  been  entertained  that 


238  REAL    PROPERTY.  [Chap.  10 

§  202.    Doctrine  in  Virginia  as  to  the  Word  "Children." — 

Suppose  there  is  a  devise  "To  a  woman  and  her  children," 
and  that  there  are  children  living  at  the  time  of  the  will. 
Then,  by  the  rule  in  Wild's  Case,  "children"  is  not  a  word 
of  limitation  but  a  word  of  purchase,  and  the  children  would 
take  jointly  with  their  mother.  But  in  Virginia,  in  many 
cases,  the  court  has  refused  to  adopt  this  construction,  and 
has  held,  instead,  that  the  mother  takes  the  whole  estate,  and 
the  children  nothing  at  all;  the  mother  taking  the  fee  simple 
by  the  statute  of  1787  dispensing  with  words  of  limitation  in 
order  to  confer  the  fee,  and  the  word  "children"  being 
neither  a  word  of  purchase  nor  a  word  of  limitation,  but  a 
word  used  to  denote  the  motive  of  the  testator  in  making  the 
devise,  viz.,  to  give  all  to  the  mother,  that  she  might  have 
the  means  to  support  and  educate  her  children.  See  Wallace 
v.  Bold,  3  Leigh,  258;  Stinson  v.  Day,  1  Eob.  (Va.)  459; 
Mosby  v.  Paul,  88  Va.  533,  where  all  the  previous  cases  are 
collected.  And  this  construction  has  been  adopted  in  West 
Virginia.  Wilmoth  v.  Wilmoth,  34  W.  Va.  426;  Seamonds 
v.  Hodge,  36  Id.  304.  The  same  doctrine  has  been  held  as  to 
deeds  conveying  property  in  trust  for  a  woman  and  her 
children.  Mauzy  v.  Mauzy,  79  Va.  537;  Seibel  v.  Rapp,  85 
Va.  28;  Stace  v.  Bamgardner,  89  Va.  418;  Nye  v.  Lovitt, 
92  Va.  710;  Fachler  v.  Berry,  93  Va.  565.1 

in  a  gift  [by  will]  to  A  and  his  issue,  the  word  issue  is  always 
a  word  of  limitation,  whether  there  be  any  issue  or  not;  and  that, 
therefore,  under  any  circumstances,  A  takes  an  estate  tail  in 
realty,  and  an  absolute  interest  in  personalty,"  and  it  is  believed 
that  such  is  the  law,  and  that  the  doctrine  of  Wild's  Case  is  now 
inapplicable  except  to  a  limitation  to  A  and  his  children.  See 
2  Jarman,  Wills  (411);  Hawkins,  Wills,  189,  197;  2  Wms.  Exors. 
1107. 

1  To  a  Woman  and  Her  Children  in  Virginia. — For  the  general 
doctrine  that  a  deed  or  devise  "To  A  and  his  children,"  when 
there  are  children  living  at  the  time  of  the  deed  or  devise,  cre- 
ates a  joint  estate  in  A  and  his  children  as  purchasers,  see  Free- 
man, Cot.  &  Part.,  §  26,  where  it  is  said:  "A  deed,  devise,  or  be- 
quest to  a  man  and  his  children,  or  to  a  woman  and  her  chil- 


§§202,203]  REMAINDERS.  239 

§  203.  Surviving  Children. — When  a  testator  makes  a  be- 
quest or  devise  "To  A  for  life,  and  at  A's  death,  to  my 
surviving  children/'  and  some  of  the  children  who  survive  the 
testator  die  before  A,  the  life  tenant,  dies ;  the  question  arises, 
does  the  word  "surviving"  have  reference  to  the  death  of 
the  testator,  or  to  the  death  of  A?  It  is  now  settled  in 
Virginia  that  it  refers  to  the  death  of  the  testator,  unless 
the  will  manifests  a  contrary  intent,  and  this  on  the  ground 
that  the  law  favors  the  vesting  of  estates.  Hansford  v. 
Elliott,   9   Leigh,    79    (Tucker,    P.,    dissenting) ;   Martin   v. 

dren,  without  any  additional  words,  must  be  regarded  in  the 
same  manner  as  if  made  to  any  other  class  or  number  of  persons. 
The  grantees,  therefore,  take  as  joint  tenants."  See  also  Devlin 
on  Deeds,  §  860.  And  see  2  Va.  Law  Reg.  39,  note,  by  Judge 
Burks  to  Nye  v.  Lovitt,  92  Va.  710,  where  it  is  said:  "All  the 
Virginia  cases  on  this  subject,  we  believe,  are  cited  by  Judge 
Lewis  in  Stace  v.  Bumgardner.  We  invite  an  examination  of  each 
one  of  them,  and  we  think  it  safe  to  say  that  in  no  one  of  them 
is  the  decision  that  the  children  take  no  interest  rested  on  the 
language  alone  that  the  gift  is  'to  the  woman  and  her  children.' 
The  intention  to  give  exclusively  to  the  woman  is  deduced  from 
the  context,  and  the  language  of  the  instrument  taken  as  a 
whole.  We  submit  that  if  the  language  is  'to  the  woman  and 
her  children,'  they  take — the  woman  and  her  children — a  joint  es- 
tate, unless  there  is  some  other  language  in  the  instrument  mani- 
festing the  intention  that  the  woman  shall  take  the  whole  estate 
and  the  children  nothing."  But  see  Mosby  v.  Paul,  88  Va.  533, 
not  cited  in  Stace  v.  Bumgardner,  supra.  And  in  Fackler  v. 
Berry,  93  Va.  565,  it  is  said  by  Keith.  P.:  "There  is  a  class  of 
cases  beginning  with  Wallace  v.  Dold,  3  Leigh,  258,  and  running 
down  to  Mosby  v.  Paul's  Adm'r,  88  Va.  533,  in  all  of  which  the 
language  used  is  far  more  apt  and  proper  to  create  an  interest 
in  the  children  than  that  upon  which  we  are  commenting,  but 
in  each  of  these  cases  it  was  held  that  the  mother  took  a  fee 
simple  to  the  exclusion  of  any  interest  whatever  in  the  children, 
who  were  named  merely  as  indicating  the  motive  or  considera- 
tion for  the  gift."  In  all  the  Virginia  cases  the  limitation  has 
been  to  a  woman  and  her  children.  Quaere:  would  the  construc- 
tion be  the  same  in  Virginia  if  a  gift  or  devise  were  made  to  a 
man  and  his  children? 


240  REAL    PROPERTY.  [Chap.  10 

Kirby,  11  Grat.  67;  Stone  v.  Lewis,  84  Va.  474;  Sellers  v. 
Reed,  88  Va.  377;  Gish  v.  Moomaw,  89  Ya.  347;  Chapman 
v.  Chapman,  90  Va.  409;  Crews  v.  Hatcher,  91  Va.  382; 
Stanley  v.  Stanley,  92  Va.  534.  In  England,  on  the  other 
hand,  it  is  now  settled,  after  great  fluctuation,  that  the  word 
surviving  in  a  bequest  of  personalty,  is  taken  as  referring 
to  the  period  of  distribution.  Cripps  v.  Wolcott,  4  Madd. 
11;  Hawkins  on  Wills,  261;  29  Eng.  &  Am.  Ency.  Law,  488. 
In  devises  of  realt}',  it  ought  to  be  referred,  if  the  same  rule 
were  applied,  to  the  determination  of  the  prior  limitation. 
But  it  is  said  that  it  must  be  left  to  future  decisions  to  tell 
what  is  the  actual  rule  of  construction  applicable  in  England 
to  this  perplexing  word  in  reference  to  real  estate.  Taaffe 
v.  Conmee,  10  H.  of  L.  Cas.  69,  per  Westbury,  C. ;  Winterton 
v.  Crawford,  1  Buss.  &  M.  407;  2  Jarm.  on  Wills,  53;  2  Redf. 
on  Wills,  371,  488;  Hawkins  on  Wills,  262.  For  a  collection 
of  the  American  cases  see  29  Am.  &  Eng.  Ency.  Law,  489. 

§  204.  Examples  of  Limitations  to  Surviving  Children  in 
Virginia. 

(1).  Hansford  v.  Elliott,  9  Leigh,  79  [in  effect]:  "I  be- 
queath certain  personalty  to  my  wife  for  her  life;  and  at 
her  death  to  be  divided  among  my  surviving  children."  Held, 
that  surviving  meant  surviving  the  testator,  and  that  all 
the  children  living  at  the  testator's  death  took  vested  inter- 
ests, which  weTe  not  affected  by  their  death  before  the  wife, 
but  passed  to  their  personal  representatives. 

(2).  Martin  v.  Kirby,  11  Grat.  67  [in  effect]:  "I  devise 
to  my  wife  my  land  during  her  widowhood,  and  at  her 
death  I  wish  it  sold  and  the  proceeds  divided  among  my 
surviving  children."  Held,  that  children  surviving  testator 
took  vested  interests  at  that  time. 

(3).  Stone  v.  Lewis,  84  Va.  474  [in  effect]  :  "I  devise  my 
land  to  my  wife  for  her  life,  and  after  her  decease  I  wish  it 
sold,  and  the  proceeds  divided  among  my  surviving  brothers 
and  sisters."  Held,  the  brothers  and  sisters  surviving  the 
testator  took  vested  interests  as  of  that  time. 


§§  203-205]  REMAINDERS.  241 

(4).  Jameson  v.  Jameson,  86  Ya.  51  [in  effect]  :  "I  be- 
queath personalty  to  my  daughter  for  her  life,  and  after  her 
death  the  same  to  be  equally  divided  amongst  her  surviv- 
ing children,  and  the  issue  of  such  as  may  be  dead,  such  issue 
taking  per  stirpes,  and  not  per  capita.  Held,  that  the  taking 
of  the  children  is  expressly  postponed  to  the  death  of  their 
mother,  and  the  gift  is  to  such  only  as  survive  her;  but  that 
the  gift  to  the  issue  of  such  of  the  children  as  do  not  sur- 
vive the  mother  is  an  original  gift  to  such  issue,  and  not  by 
way  of  substitution,  and  that  to  such  original  gift  no  con- 
dition of  survivorship  of  the  life  tenant  is  annexed  by  the 
testator.  Here  it  will  be  seen  that  as  to  the  children,  the 
general  rule  was  set  aside  in  favor  of  the  intention,  and  the 
word  "surviving"  was  held  to  have  reference  to  the  death 
of  the  life-tenant  (their  mother),  and  not  to  the  death  of  the 
testator. 

(5).  Cheatham  v.  Goiver  (Va.)  26  S.  E.  853  [in  effect]: 
"I  devise  to  my  nephew  my  land  for  his  life,  and  at  his 
death  to  his  surviving  children."  Held,  following  Jameson 
v.  Jameson,  supra,  that  "surviving"  has  reference  to  the  death 
of  the  nephew,  and  not  to  the  death  of  the  testatrix,  and  that 
such  only  of  the  nephew's  children  were  entitled  as  were  liv- 
ing at  his  death;  but  that  a  child  surviving  the  nephew  (its 
father)  was  entitled  to  take,  although  not  born  until  after 
the  death  of  the  testatrix.  The  general  rule  was  recognized, 
but  the  case  was  made  an  exception  on  the  ground  of  inten- 
tion. Keith,  P.,  dissented.  It  would  seem,  however,  that  the 
decision  is  correct,  and  that  there  is  a  material  distinction 
between  cases  where  the  testator,  after  a  life  estate  to  A, 
gives  property  (1)  "To  my  surviving  children"  (i.  e.,  sur- 
viving me,  the  testator),  and  (2)  "To  his  surviving  children" 
{%.  e.,  surviving  A,  the  life  tenant). 

§  205.  Virginia  Statutes  Altering  the  Common  Law  Doc- 
trines Concerning  Remainders. 

(1).  Livery  of  seisin  is  not  required  in  Virginia  in  order 
to  create  a  freehold.  "All  real  estate  shall,  as  regards  the  con- 
veyance of  the  immediate  freehold  thereof,  be  deemed  to  lie  in 
16 


242  REAL    PROPERTY.  [Chap.  10 

grant  as  well  as  in  livery."     Code  of  1849,  ch.   116,  §   4, 
taking  effect  July  1,  1850.    See  Code  of  1887,  §  2417. 

(2).  Protection  of  a  contingent  remainder  from  destruc- 
tion by  forfeiture  or  merger.  "The  alienation  of  a  particular 
estate  on  which  a  remainder  depends  [i.  e.,  an  alienation  by 
a  tortious  conveyance,  which  worked  a  forfeiture  at  common 
law.  Archer's  Case,  1  Co.  63],  or  the  union  of  such  estate 
with  the  inheritance  by  purchase  or  descent,  shall  not  operate, 
by  merger  or  otherwise,  to  defeat,  impair,  or  otherwise  affect 
such  remainder."  See  1  Rev.  Code  of  1819,  ch.  99,  §  20; 
Code  of  1887,  §  2425:  So  that  trustees  are  not  needed  in 
Virginia  to  protect  contingent  remainders.  See  17  Am.  St. 
E.  839,  note. 

(3).  Statute  protecting  a  contingent  remainder  from  fail- 
ing, although  it  is  not  ready  to  vest  during  the  continuance 
of  the  particular  estate,  or  eo  instanti  that  it  determines. 
"A  contingent  remainder  shall  in  no  case  fail  for  want  of 
a  particular  estate  to  support  it."  Code  of  1849,  ch.  116, 
§  12;  Code  of  1887,  §  2424.  Thus  in  the  limitation,  "To  A 
for  life,  remainder  to  the  heirs  of  B,"  if  A  dies  before  B, 
the  remainder  to  the  heirs  of  B  does  not  fail,  but  takes  effect 
whenever  B  dies.1 

1  Protection  of  a  Contingent  Remainder  from  Failure. — Upon 
the  construction  of  the  emphatic  language  of  the  Virginia  statute 
of  1849  (taking  effect  July  1,  1850),  that  "a  contingent  remainder 
shall  in  no  case  fail  for  want  of  a  particular  estate  to  support  it," 
two  points  are  to  be  noted: 

(1).  The  statute  prevents  the  failure  of  a  contingent  remain- 
der. It  is  assumed  that  there  is  such  a  remainder  well  limited, 
which,  however,  is  liable  to  fail  (never  take  effect)  for  want  of 
a  particular  estate  to  support  it;  as  when,  subsequently  to  the 
creation  of  the  remainder,  the  particular  estate  comes  to  a  nat- 
ural end,  or  is  destroyed  (meets  with  a  violent  death,  e.  g.  by 
merger),  before  the  remainder  is  ready  to  vest.  In  such  case, 
though  the  remainder  does  not  vest  during  the  continuance  of 
the  particular  estate,  or  co  instanti  that  it  determines,  the  statute 
saves  it  from  failure,  and  allows  it  to  take  effect  afterwards. 
But  in  a  deed  "To  A  for  ten  years,  remainder  to  the  heirs  of  B," 
there  is  really  no  contingent  remainder,  as  the  limitation  to  the 


§  205]  REMAINDERS.  243 

heirs  of  B  is  void  ab  initio  for  want  of  a  freehold  support.  It  is 
not  a  contingent  remainder  liable  to  fail  for  want  of  a  particular 
estate  (of  freehold)  to  support  it;  but  an  abortive  attempt  to 
create  such  a  remainder,  void  in  its  inception,  and  concerning 
which,  as  a  nullity,  no  question  of  failure  arises.  Such  a  limita- 
tion, therefore,  is  not  within  the  meaning  of  §  2424  of  the  Code. 
If  it  were  in  a  devise,  it  would  be  good  as  an  executory  devise 
(as  to  which  see  hereafter);  and  it  is  now  validated  in  a  deed 
by  C.  V.,  §  2428,  declaring  that  "any  estate  which  would  be  good 
as  an  executory  devise  or  bequest  shall  be  good  if  created  by 
deed." 

(2).  Again,  it  is  to  be  observed  that  the  statute  preserves  a 
contingent  remainder  from  failure  "for  want  of  a  particular  es- 
tate to  support  it."  But  a  condition  precedent  to  the  vesting,  im- 
posed by  the  grantor,  expressly  or  by  construction  of  law,  must 
be  performed  before  the  remainder  can  vest  and  take  effect. 
Fearne,  as  we  have  seen,  defines  a  contingent  remainder  as  "lim- 
ited so  as  to  depend  on  an  event  or  condition  which  may  never 
happen  or  be  performed,  or  which  may  not  happen  or  be  per- 
formed until  after  the  determination  of  the  particular  estate."  It 
is  to  the  latter  case  that  the  statute  refers;  and  the  remainder 
(subject  to  the  rule  against  perpetuities,  as  to  which  see  here- 
after), is  allowed  to  take  effect  on  the  performance  of  the  condi- 
tion precedent,  though  it  is  not  performed  until  after  the  ending 
of  the  particular  estate;  so  that  there  is  an  interval  during  which 
there  was  a  "want  of  a  particular  estate  to  support  it."  Thus,  in 
the  limitation:  "To  A  for  life,  and  if  B  (a  bachelor)  have  a  son, 
then  to  such  son  and  his  heirs,"  a  son  of  B  could  take  under  the 
statute,  though  not  in  being  until  after  the  death  of  A;  and  so 
in  a  deed  "To  A  for  life,  and  after  C's  death,  to  B  and  his  heirs," 
it  is  presumed,  under  the  statute,  that  B  could  take  on  C's  death, 
though  A  dies  before  C.  On  the  other  hand,  if  a  deed  be  made 
"To  A  for  life,  and  if  C  dies  under  twenty-one,  remainder  to  B 
and  his  heirs";  while,  by  the  statute,  B  could  take  on  the  death 
of  C  under  twenty-one,  though  after  the  death  of  A,  yet  B  would 
not  take  if  C  lived  to  be  over  twenty-one.  And  the  same  is  true 
when  the  remainder  is  contingent  on  the  survivorship  of  one  per- 
son by  another,  or  survivorship  of  a  certain  time  or  event.  The 
survivorship  must  take  place,  though  under  the  statute  it  may  not 
occur  until  after  the  determination  of  the  particular  estate.  Thus, 
in  a  devise  "To  A  for  life,  remainder  to  such  of  the  children  of  A 
as  shall  be  living  at  the  death  of  B."  only  such  children  of  A  as 
survive  B  can  take;  but  the  statute  permits  them  to  take  if  they 
do  survive  B,  though  the  death  of  B  does  not  occur  until  many 
years  after  the  death  of  A. 


CHAPTEE  XI. 

Executory  Interests. 

§  206.  Definition. — Executory  interests  are  divided  into 
two  classes:  (1)  Executory  Uses,  and  (2)  Executory  Devises. 
An  executory  use  is  a  limitation  valid  as  a  use,  but  void  at 
common  law  as  a  remainder.  An  executory  devise  is  a  limi- 
tation valid  in  a  will,  but  void  at  common  law  as  a  remainder. 
Eearne's  celebrated  definition  of  an  executory  devise  is 
in  substance  as  follows :  "Such  a  limitation  of  a  future  estate 
in  lands  as  the  law  admits  in  a  will,  though  contrary  to  the 
rules  of  conveyancing  at  common  law."  See  Fearne,  pp. 
386,  395.1 

§  207.  The  Sacred  Rule  as  to  Executory  Interests. — No 
limitation  in  a  deed  or  will  shall  ever  be  considered  an  execu- 
tory use,  or  an  executory  devise,  if  it  can  possibly  be  good  at 
common  law  by  way  of  remainder.  It  is  said  that  if  there 
be  one  rule  of  law  more  sacred  than  another,  it  is  this.  The 
reason  is  that  as  executory  interests  allow  modes  of  limita- 
tion contrary  to  the  common  law,  they  are  in  derogation  of  it, 
and  so  are  construed  strictly.  The  law  favors  the  old  feudal 
remainder,  and  treats  every  limitation  by  way  of  use,  or  by 

1  Definition  of  an  Executory  Devise. — In  2  Jarman  on  Wills 
(5th  Am.  ed.),  483,  it  is  said:  "An  executory  devise  is  a  limita- 
tion by  will  of  a  future  estate  or  interest  in  land  which  cannot, 
consistently  with  the  rules  of  law,  take  effect  as  a  remainder; 
for  it  is  well  settled,  and  indeed  has  been  remarked  (as  a  rule 
without  exception),  that  when  a  devise  is  capable,  according  to 
the  state  of  the  objects  at  the  death  of  the  testator,  of  taking  ef- 
fect as  a  remainder,  it  shall  not  be  construed  to  be  an  executory 
devise." 

244 


§§  206-210]  EXECUTORY    INTERESTS.  245 

way  of  devise,  as  a  remainder,  whenever  as  a  remainder  it 
would  be  well  limited  at  common  law.  Purefoy  v.  Rogers, 
3  Saund.  380,  388;  Fearne,  394;  Gray,  Perpetuities,  §  59; 
20  Am.  &  Eng.  Eney.  Law,  913;  2  Min.  Ins.  (4th  ed.),  431. 

§  208.  How  to  Recognize  Executory  Interests. — The 
prima  facie  presumption  is  always  in  favor  of  remainders. 
See  the  "Sacred  Rule"  above  given.  Hence  the  first  thing 
to  be  considered,  in  order  to  decide  whether  a  given  limita- 
tion is  an  executory  interest  or  not,  is  whether  it  would  or 
would  not  be  good  in  feoffment,  according  to  the  common 
law  rules  governing  remainders.  If  it  can  be  good  by  way  of 
remainder,  then  it  is  a  remainder,  and  must  stand  or  fall  as 
such  (see  infra,  §  213),  and  can  never  be  regarded  as  an 
executory  use  or  devise,  although  it  may  occur  in  a  convey- 
ance to  uses  or  in  a  devise.  But  if  the  limitation  would  be 
void  at  common  law  by  way  of  remainder,  then,  if  it  occurs 
in  a  conveyance  to  uses,  it  is  called  an  executory  use;  and  if  it 
occurs  in  a  devise,  it  is  called  an  executory  devise. 

§  209.  Practical  Test  of  an  Executory  Interest. — Examine 
the  limitation,  and  decide  whether  as  a  remainder  it  is  well 
limited.  It  will  not  be  well  limited  as  a  remainder:  (1)  If 
by  it  a  freehold  is  made  to  commence  in  futuro;  or  (2)  if  a 
fee  simple  is  mounted  on  a  fee  simple,  or  if  any  limitation 
follows  a  fee  simple;  or  (3)  if  a  contingent  remainder  of 
freehold  lacks  a  freehold  support;  or  (4)  if  the  limitation 
over  is  separated  from  the  particular  estate;  or  (5)  if  it  is 
limited  to  take  effect  in  derogation  of  the  particular  estate. 
See  ante,  §  182.  Hence,  in  each  of  these  cases  the  limitation 
cannot  be  good  by  way  of  remainder,  and  for  this  very  reason 
it  becomes  an  executory  interest.     2  Jarm.  Wills,  483. 

§  210.  Examples  of  Executory  Uses. — These  occur  in  a 
conveyance  to  uses,  and  so  there  must  be  a  feoffee  to  use, 
and  a  cestui  que  use. 

(1).  Deed  "To  A  and  his  heirs  to  the  use  of  B  and  his 
heirs  from  and  after  the  marriage  of  B  with  F."     Now  is 


246  REAL    PROPERTY.  [Chap.  11 

B's  estate  good  by  way  of  remainder?  Manifestly  not,  since 
it  is  a  freehold  commencing  in  futuro.  Therefore,  B's  estate 
cannot  be  a  remainder,  and  hence  it  can  be  and  is  an  execu- 
tory use,  being  found  in  a  conveyance  to  uses.  It  is  called  a 
springing  use,  as  it  springs  up  and  takes  effect  on  a  future 
day. 

(2).  Deed  "To  A  and  his  heirs,  to  the  use  of  C  and  his 
heirs  until  B  shall  marry  F;  and  from  and  after  such  mar- 
riage to  the  use  of  B  and  his  heirs."  Is  B's  estate  good 
by  way  of  remainder  ?  Manifestly  not,  for  it  mounts  a  fee  on 
a  fee.  Then  B's  estate  cannot  be  a  remainder,  and,  there- 
fore, it  can  be  and  is  an  executory  use,  being  found  in  a  con- 
veyance to  uses.  It  is  called  a  shifting  use,  as  it  shifts,  on 
B's  marriage,  from  C  to  B. 

N.  B.  A  use  is  called  springing  when  it  limits  a  freehold 
to  commence  in  futuro;  a  use  is  called  shifting  when  it 
mounts  a  fee  on  a  fee.     See  (1)  and  (2)  supra.1 

1  Springing  and  Shifting  Uses. — In  20  Am.  &  Eng.  Ency.  of 
Law,  909,  these  definitions  are  given:  "Interests  in  realty  created 
by  such  limitations,  [i.  e.,  "future  interests  in  land  which  would 
be  invalid  if  made  in  an  assurance  at  common  law"]  are  called 
executory  interests,  and  may  be  divided  into  springing  and  shift- 
ing uses,  and  executory  devises.  A  springing  interest  is  an  in- 
terest limited  by  way  of  use  or  devise  to  take  effect  at  a  future 
time  independently  of,  without  being  supported  by,  and  without 
affecting,  any  prior  interest  of  the  measure  of  freehold  created 
by  the  same  instrument.  A  shifting  interest  is  an  interest  so 
limited  as  to  arise  in  derogation  or  defeasance  of  another  inter- 
est of  the  measure  of  freehold  created  by  a  preceding  limitation. 
If  created  by  way  of  use,  these  interests  are  called  springing  and 
shifting  uses;  if  by  will,  springing  and  shifting  devises,  or  more 
commonly  executory  devises  indiscriminately.  Conditional  limita- 
tion is  a  common  term  for  shifting  uses  and  shifting  executory 
devises,  as  well  as  the  limitations  by  which  they  are  created.  A 
contingent  use,  strictly  speaking,  is  a  remainder  limited  by  way 
of  use,  but  the  term  is  used  loosely  to  designate  all  future  uses, 
and  sometimes  even  to  distinguish  springing  and  shifting  uses 
from  those  limited  by  way  of  remainder."  In  Gray,  Perpetuities, 
§  54,  it  is  said:    "When  a  use  or  devise  takes  effect  on  the  determi- 


§§  210,  211]  EXECUTORY    INTERESTS.  247 

(3).  Deed  to  A  and  his  heirs  to  the  use  of  B  for  twenty- 
one  years;  remainder  to  the  use  of  the  first  unborn  son  of 
B,  and  the  heirs  of  his  body.  Is  the  estate  of  B's  unborn 
son  good  by  way  of  remainder?  Manifestly  not,  for  it  is  a 
contingent  remainder  of  freehold  without  any  freehold  sup- 
port. Therefore,  the  estate  to  B's  unborn  son  cannot  be  a 
remainder,  and  hence  it  can  be  and  is  an  executory  use. 
Gray,  Perpetuities,  §  58 ;  1  Am.  &  Eng.  Ency.  Law,  927,  note. 

(4).  Deed  to  A  and  his  heirs  to  the  use  of  B  for  life,  and 
after  B's  death  and  one  week,  to  the  use  of  C  and  his  heirs. 
Is  C's  estate  good  by  way  of  remainder?  Manifestly  not, 
for  there  is  a  gap  between  it  and  the  particular  estate. 
Then,  as  it  cannot  be  a  remainder,  it  can  be  and  is  an  ex- 
ecutory use.  Eor  an  example  of  a  limitation  over  taking 
effect  in  derogation  of  the  particular  estate,  see  infra,  §  212. 

It  will  be  remembered  that  in  each  of  the  above  exam- 
ples, A  is  feoffee  to  uses,  and  stands  seised  to  the  use,  and 
is  called  the  reservoir  of  seisin.  The  uses  are  executed,  as 
they  arise,  by  the  Statute  of  Uses,  he  who  has  the  use  being 
deemed  in  lawful  seisin  and  possession,  i.  e.,  to  have  the 
legal  title. 

§  211.  Examples  of  Executory  Devises. — These  do  not  re- 
quire the  aid  of  uses,  but  they  must  be  found  in  a  devise,  and 
then  are  permitted  by  way  of  indulgence  to  testators. 

(1).  Devise  to  B  and  his  heirs  from  and  after  his  mar- 
riage with  F.  Is  B's  estate  good  by  way  of  remainder? 
Manifestly  not,  because  it  is  a  freehold  to  commence  in  futuro. 
Therefore  B's  estate  cannot  be  a  remainder;  and  hence  it  can 
be  and  is  an  excutory  devise,  being  found  in  a  will.  Com- 
pare this  example  with  a  springing  use. 

nation  of  preceding  estates  created  at  the  same  time,  it  is  a  re- 
mainder limited  by  way  of  use  or  devise.  When  a  use  cuts  short 
another  granted  estate,  it  is  called  a  shifting  use.  When  it  cuts 
short  the  estate  of  the  person  creating  it,  it  is  called  a  springing 
use." 


248  REAL    PROPERTY.  [Chap.  11 

(2).  Devise  to  C  and  his  heirs;  but  on  the  marriage  of  B 
with  F,  then  to  B  and  his  heirs.  Is  B's  estate  good  by  way 
of  remainder?  Manifestly  not,  because  it  mounts  a  fee  on 
a  fee.  Therefore,  B's  estate  cannot  be  a  remainder;  and 
hence  it  can  be  and  is  an  executory  devise,  being  found  in  a 
will.     Compare  this  example  with  a  shifting  use.1 

(3).  Devise  to  B  for  twenty-one  years;  remainder  to  the 
first  unborn  son  of  B  and  the  heirs  of  his  body.  Is  the 
estate  of  the  unborn  son  good  by  way  of  remainder?  Mani- 
festly not,  because  it  is  a  contingent  remainder  of  freehold 
without  a  freehold  support.  Therefore  it  cannot  be  a  re- 
mainder; and  hence  it  can  be  and  is  an  executory  devise, 
being  found  in  a  will.     See  Fearne,  395 ;  2  Jarm.  Wills,  484. 

(4).  Devise  to  B  for  life,  and  after  B's  death,  and  one 
week,  to  C  and  his  heirs.  Is  C's  estate  good  by  way  of 
remainder?  Manifestly  not,  for  there  is  a  gap  between  it 
and  the  particular  estate.  Therefore  C's  estate  cannot  be  a 
remainder,  and  hence  it  can  be  and  is  an  executory  devise. 

1  Executory  Devise  of  a  Fee  on  a  Fee. — In  2  Jarman  on  Wills, 
485,  it  is  said:  "It  will  be  apparent  from  what  has  been  stated 
that  every  devise  to  a  person  in  derogation  of,  or  substitution  for, 
a  preceding  estate  in  fee  simple,  is  an  executory  limitation.  Thus 
in  the  case  of  a  devise  to  A  and  his  heirs,  and  if  he  shall  die 
under  twenty-one  and  without  issue  (i.  e.,  without  issue  living 
at  his  death),  or  if  he  shall  die  without  issue,  living  B,  then  to 
B;  in  each  of  these  cases  the  devise  to  B  is  executory,  in  the  same 
manner  as  if  the  fee,  instead  of  being  limited  to  A,  had  been 
suffered  to  descend  to  the  heir  at  law  of  the  testator,  and  the 
property  had  simply  been  devised  to  B  on  either  of  such  events; 
the  only  difference  being  that  in  the  one  case  the  property  shifts, 
on  the  happening  of  the  contingency,  from  the  prior  devisee, 
and  in  the  other,  from  the  heir  of  the  testator,  to  the  devisee  of 
the  executory  interest.  No  species  of  executory  limitation  is  of 
such  frequent  occurrence  as  those  which  are  limited  in  defeas- 
ance of  a  prior  estate  in  fee." 


§§211,212]  EXECUTORY    INTERESTS.  249 

Fearne,  398.     For  example  of  a  limitation  over  taking  effect 
in  derogation  of  the  particular  estate,  see  infra,  §  212. 1 

§  212.  Conditional  Limitations. — These  constitute  an  im- 
portant class  of  executory  interests,  void  at  common  law  as 
remainders,  but  allowed  in  wills,  and  in  deeds  by  way  of 
use.  In  a  conditional  limitation  there  is  a  limitation  of  an 
estate  to  A,  which,  however,  on  a  certain  condition  subse- 

1  Can  Executory  Interests  be  Vested. — Fearne,  Remainders, 
Introduction,  1,  in  his  division  of  estates  into  vested  or  contingent, 
names  as  vested  in  interest:  "Reversions,  vested  remainders, 
such  executory  devises,  future  uses,  conditional  limitations,  and 
other  future  interests,  as  are  not  referred  to  or  made  to  depend 
on  a  period  or  event  that  is  uncertain."  And  see  Fearne,  p.  400, 
where  he  divides  freeholds  to  commence  in  futuro  into  two 
classes.  (1)  "Where  the  deviser  gives  a  future  estate  to  arise 
upon  a  contingency, ,"  as  a  devise  to  the  first  son  or  the  heir  of 
J.  S.,  when  he  shall  have  one,  or  a  devise  to  the  daughter  of  B 
who  shall  marry  such  a  one  within  fifteen  years";  and  (2)  "Where 
the  future  estate  is  not  contingent,  but  limited  in  a  certain  event, 
as  a  devise  to  one  to  take  effect  six  months  after  the  testator's 
death."  And  Jarman  says,  speaking  of  a  freehold  to  commence 
in  futuro  (2  Jarm.  Wills,  484):  "So  a  devise  to  a  person  or  per- 
sons, whether  in  esse  or  not,  to  take  effect  at  a  given  period  after 
the  death  of  the  testator,  as  to  A  at  the  death  of  B  (a  stranger), 
or  at  six  months  from  the  testator's  decease,  obviously  belongs 
to  the  class  of  limitations  under  consideration."  And  in  Butler's 
note  to  Fearne,  p.  398,  it  is  declared  that  an  executory  devise  of 
a  fee  after  a  fee  may  be  made  to  take  effect  on  a  certain  event, 
and  the  example  is  given  of  a  devise  of  land  "To  A  and  his  heirs, 
with  a  proviso  that  at  the  end  of  one  year  after  the  decease  of 
B.  it  should  devolve  to  C  and  his  heirs." 

But  although  the  event  upon  which  an  executory  interest  may 
be  limited  to  take  effect  may  be  certain,  it  is  denied  by  Butler  in 
his  note  to  Fearne,  p.  1,  n.  (a),  that  such  an  interest  can  prop- 
erly be  called  a  vested  estate.  He  says:  "It  seems  evident  that 
as  in  all  these  cases  the  whole  fee  simple  is  either  in  the  person 
from  whom  the  land  moves,  or  in  his  heirs,  or  is  included  in  the 
actual  limitations,  the  person  taking  under  the  conditional  limi- 
tation, or  executory  devise,  cannot,  while  the  suspense  continues, 
in  the  proper  sense  of  the  word  have  any  estate,  though  the  event 
on  which  it  depends  is  certain  of  happening.    A  conveys  land  by 


250  REAL    PROPERTY.  [Chap.  11 

quent,  is  limited  over  to  B.  Under  this  head  may  be  ranked 
a  fee  on  a  fee  by  way  of  an  executory  devise,  or  by  way  of 
a  shifting  use,  as  has  been  explained  above.  But  there  is 
another  species  of  conditional  limitation  which  now  de- 
mands special  attention,  and  which  can  be  best  understood 
by  an  example.  Suppose  by  feoffment  at  common  law  land 
is  conveyed  "To  A  for  life:  provided,  however,  that  if  C  re- 
lease and  release  to  B  and  his  heirs  to  the  use  of  C  and  his  heirs 
from  the  first  day  of  the  following  January;  or  devises  land  to 
C  and  his  heirs  from  the  first  day  of  January  next  after  the 
testator's  decease.  In  the  first  case,  the  fee  remains  in  A;  in  the 
second,  it  descends  to  the  heir-at-law  of  A,  till  the  day  arrives 
upon  which  C  is  to  be  entitled  to  the  land  for  an  estate  in  fee 
simple  in  possession.  In  the  meantime,  C  has  not  an  estate  in 
possession,  as  he  has  not  a  right  of  present  enjoyment;  he  has 
not  an  interest  in  remainder,  as  the  limitation  to  him  depends  on 
the  estate  in  fee-simple,  which,  in  the  first  case,  remains  in  A, 
and  in  the  second,  descends  to  A's  heir;  he  has  not  a  contingent 
interest,  as  he  is  a  person  in  being  and  ascertained,  and  the  event 
on  which  the  limitation  to  him  depends  is  certain;  and  he  has 
not  a  vested  estate,  as  the  whole  fee  is  vested  in  A  or  his  heirs. 
He,  therefore,  has  no  estate;  the  limitation  is  executory,  and 
confers  on  him  and  his  heirs  a  certain  fixed  right  to  an  estate 
in  possession  at  a  future  period."  And  Gray  says  (Perpetuities, 
§  114) :  "An  interest  to  commence  at  a  future  time  certain,  e.  g., 
an  executory  devise  to  go  into  effect  ten  years  after  the  testator's 
death,  cannot  be  called  contingent;  but  neither  is  it  vested.  It 
is  an  executory  limitation.  .  .  .  Springing  and  shifting  uses 
and  executory  devises  are  not  vested  interests  until  they  take 
effect  in  possession,  or  are  turned  into  vested  remainders."  And 
in  §  99  Gray  says:  "The  distinction  [between  vested  and  con- 
tingent interests]  is  of  great  importance  as  concerns  the  rule 
against  perpetuities;  for  a  vested  interest  is  never  obnoxious  to 
the  rule,  while  a  contingent  [or  non-vested]  interest  not  only  may 
be,  but  often  is."  And  in  §  317  he  declares:  "Shifting  and  spring- 
ing uses  and  executory  devises  are  all,  without  question,  subject 
to  the  rule  against  perpetuities  " 

By  some  text-writers,  however,  executory  interests  are  classi- 
fied as  vested  or  contingent,  after  the  analogy  of  vested  or  con- 
tingent remainders.  See  2  Washb.  R.  P.  570;  Tiedeman  R.  P.,  § 
483,  §  531;    Hopkins  R.  P.,  299,  301.    Thus,  in  §  531,  Tiedeman, 


§  212]  EXECUTORY    INTERESTS.  251 

turns  from  Rome  during  A's  life,  A's  life  estate  shall  cease, 
and  the  land  shall  go  to  B  and  his  heirs."  The  estate  of 
B  is  called  a  conditional  limitation,  because  it  is  an  estate 
limited  over  to  B  after  A's  prior  estate  on  condition.  Now 
suppose  C  does  return  from  Rome,  can  the  limitation  over 
to  B  take  effect  ?  It  cannot  as  a  remainder,  for  every  remain- 
der must,  ex  vi  termini,  await  the  regular  expiration  of  the 
particular  estate,  and  cannot  cut  it  short,  and  take  effect  in 
derogation  of  it.  See  ante,  §  182;  also,  §  209,  (5).  And 
if  the  limitation  to  B  is  to  depend  on  the  doctrine  of  condi- 
tional estates,  it  fares  no  better.  For  an  estate  granted  on 
condition  does  not  end  ipso  facto  when  the  condition  is 
broken.  The  grantor  must  enter  and  divest  the  estate;  for 
he  may  waive  the  breach  of  condition  if  he  chooses.  And  by 
the  doctrine  of  maintenance  no  one  bid  the  feoffor  or  his 
heirs  can  make  the  entry;  for  nothing  at  common  law  that 
lies  in  action,  entry  or  re-entry  can  be  granted  over.  It  fol- 
lows that  on  C's  return  from  Rome,  B  cannot  himself  enter 
on  the  land,  but  must  wait  for  the  entry  of  the  feoffor.  But 
suppose  the  feoffor  enters.     The  effect  is  to  annul  the  seisin 

says:  "The  devise  is  vested  when  the  person  who  is  to  take  is 
in  esse,  and  is  ascertained,  and  when  the  event  upon  which  he 
is  to  take  is  also  certain.  Such  a  devisee  takes  a  vested  future 
estate.  When  the  estate  is  to  vest  upon  an  uncertain  event,  or 
in  a  person  not  definitely  ascertained,  the  executory  devise  is 
contingent  and  partakes  of  the  nature  of  a  contingent  remainder." 
For  the  different  meanings  of  "vested,"  see  Hawkins,  Wills,  221, 
where  it  is  said:  "It  is  obvious  that  this  division  into  'vested' 
and  'contingent'  tails  when  applied  to  future  executory  interests 
in  land,  not  taking  effect  as  remainders.  An  executory  devise 
after  a  fee  simple  cannot  be  said  to  be  'vested'  as  an  estate  until 
it  vests  in  possession;  and  yet  it  may  be  limited  on  an  event 
absolutely  certain  to  happen,  and  is,  therefore,  not  contingent." 
But  whether  executory  interests  can  ever  properly  be  called 
vested  or  not,  it  is  agreed  that  they  are  all  subject  to  the  rule 
against  perpetuities,  both  those  which  are  to  take  effect  upon  a 
certain  event  and  those  whose  future  existence  depends  upon  a 
contingency.  See  18  Am.  Eng.  Ency.  Law,  341,  353;  20  Id., 
918,  951. 


252  REAL    PROPERTY.  [Chap.  11 

given  to  A  ab  initio,  and  to  revest  the  land  in  the  feoffor  as 
of  his  old  estate.  But  on  this  seisin  the  limitation  to  B  de- 
pended; and,  therefore,  the  annulling  of  A's  estate  destroys 
B's  also.  And  for  these  reasons  conditional  limitations  are 
void  at  common  law.  But,  as  stated  above,  they  are  per- 
mitted under  the  statutes  of  uses  and  devises.  For,  as  execu- 
tory interests,  they  may  take  effect  in  derogation  of  the  pre- 
ceding estate;  and  no  entry  by  the  feoffor  or  his  heir  is  nec- 
essary, because  in  a  devise,  or  in  a  deed  to  uses,  the  happen- 
ing of  the  contingency,  or  the  non-performance  of  the  con- 
dition, ipso  facto  determines  the  estate  of  the  first  taker,  and 
vests  it  in  the  other  to  whom  it  is  limited.  "A  conditional 
limitation  is,  therefore,  of  a  mixed  nature,  partaking  both  of 
a  condition  and  of  a  limitation;  of  a  condition  because  it  de- 
feats the  estate  previously  limited;  and  of  a  limitation,  be- 
cause upon  the  happening  of  the  contingency,  the  estate 
passes  to  the  person  having  the  expectant  interest  without 
entry  or  claim."  Brattle  Square  Church  v.  Grant,  3  Gray 
(Mass.),  142  (63  Am.  Dec.  725),  per  Bigelow,  J.;  Fearne 
274,  382,  n.  (a);  2  Jarm.  Wills,  485;  Camp  v.  Cleary,  76 
Va.  140;  20  Am.  &  Eng.  Ency.  Law,  912. 

§  213.  Remainders  in  Deeds  by  Way  of  Use,  and  in  De- 
vises.— We  have  seen  that  there  can  be  remainders  by  way  of 
use,  and  that  a  limitation  in  a  deed  to  uses  must  be  consid- 
ered a  remainder,  unless  it  violates  the  rules  governing  re- 
mainders. Thus,  a  deed  "To  A  and  his  heirs,  to  the  use  of 
B  for  life,  remainder  to  the  use  of  B's  first  unborn  son  and 
the  heirs  of  his  body,"  violates  no  rule  for  remainders,  and 
is  simply  doing,  by  way  of  uses,  what  might  as  well  have 
been  done  directly,  without  uses.  Hence,  the  limitation  to 
the  unborn  son  cannot  be  considered  an  executory  use,  but  is 
simply  a  contingent  remainder  by  way  of  use. 

Again,  it  must  not  be  thought  that,  because  a  future  lim- 
itation occurs  in  a  will,  it  is,  therefore,  an  executory  devise; 
for  there  can  be  a  remainder  in  a  will,  and  the  limitation 
must  be  considered  a  remainder,  unless  it  violates  the  rules 


§§  212-214]  EXECUTORY    INTERESTS.  253 

governing  remainders.  Thus,  "Devise  to  A  for  life,  re- 
mainder to  the  first  unborn  son  of  A  who  shall  reach  the  age 
of  twenty-five  years,"  violates  no  rule  for  remainders,  and 
is  simply  an  example  of  a  contingent  remainder  by  will. 
And  it  will  be  seen  that  this  example  does  not  violate  the 
rule  against  perpetuities  for  contingent  remainders  heretofore 
stated  (ante,  §  187),  for  there  is  no  estate  given  to  an  unborn 
person  for  life,  followed  by  a  remainder  to  the  child  of  such 
unborn  person.  But  at  common  law  it  runs  the  risk  of  fail- 
ing, in  ca=e  A  dies  before  his  son  reaches  the  age  of  twenty- 
five  years. 

And  it  must  be  observed  that,  in  conveyances  to  uses, 
where  the  uses  are  executed  by  the  statute  of  uses  and  turned 
into  legal  estates,  contingent  remainders  are  subject  to  all 
the  rules  of  the  common  law,  and  will  fail  if  they  are  not 
ready  to  vest  at  the  natural  termination  of  the  particular  es- 
tate; and  may  be  destroyed  by  forfeiture  and  merger.  See 
ante,  §  185;  Fearne,  392-'95;  20  Am.  and  Eng.  Ency.  Law, 
883,  913.  But,  on  the  other  hand,  if  there  are  contingent  re- 
mainders in  trust  estates,  that  is,  in  England,  in  unexecuted 
uses,  the  common  law  rules  as  to  the  seisin  do  not  apply  to 
such  remainders  (the  seisin  remaining  in  the  trustees),  and 
they  do  not  require  to  vest  eo  instanti,  and  are  indestructible. 
See  Abbiss  v.  Burney,  17  Ch.  D.,  211;  Fearne  (304)  ;  Wins. 
E.  P.  (17th  ed.),  430,  473;  Gray  Perpetuities,  §  325,  note  1; 
20  Am.  and  Eng.  Ency.  Law,  §  884. 

§214.  Uules  for  Executory  Devises. —  (1).  In  general 
when  one  limitation  in  a  will  is  taken  to  be  an  executory 
devise,  all  subsequent  limitations  must  likewise  be  so  taken. 
Thus,  if  one  limitation  after  a  fee  simple  is  an  executory 
devise,  others  are  a  fortiori;  so  if  one  freehold  in  futuro 
is  followed  by  a  second,  or  one  conditional  limitation  by 
another;  and  so  in  other  cases.  Fearne  on  Rem.  (503)  ;  3 
Lorn.  Dig.  (311)  ;  20  Am.  &  Eng.  Ency.  Law,  950. 

(2).  A  limitation  once  good  as  a  contingent  remainder 
cannot  afterwards  be  construed  as  an  executory  devise.     But 


254  REAL    PROPERTY.  [Chap.  11 

if  the  devisee  of  a  particular  estate  on  which  the  contingent 
remainder  depends  dies  in  the  lifetime  of  the  testator,  then 
the  limitation  may  be  good  as  an  executory  devise.  For  be- 
fore the  will  takes  effect,  the  particular  estate  lapses;  hence 
when  the  will  operates,  there  is  no  such  estate.  Fearne  on 
Eem.  525;  2  Washb.  E.  P.  (348);  2  Min.  Ins.  (4th  ed.), 
447;  2  Jarm.  Wills,  496;  Carter  v.  Tyler,  1  Call  (Va.),  165. 

(3).  But  an  executory  devise  in  the  original  form  of  the 
limitation  may  become,  by  after  event,  a  contingent  remain- 
der. See  Fearne,  526 ;  2  Min.  Ins.  445,  448 ;  2  Jarm.  Wills, 
498;  Evers  v.  Challis,  7  H.  of  L.  Cas.  531. 

(4).  "It  has  been  held  that  where  an  executory  devise  is 
limited  per  verba  prcesenti,  that  is,  where  the  devisee  is 
mentioned  as  a  person  in  present  existence,  and  the  com- 
mencement of  the  estate  devised  is  not  expressly  deferred 
to  a  future  period,  then  the  devisee  must  be  a  person  capable 
at  the  death  of  the  devisor,  or  the  devise  will  be  void." 
Fearne  on  Eem.  (533).  Under  this,  such  distinctions  as 
these  were  taken:  Devise  to  heirs  of  J.  S.,  when  J.  S.  is 
living  at  death  of  testator,  is  void ;  but  to  the  heirs  of  J.  S., 
after  death  of  J.  #.,  is  good.  So,  to  first  son  of  A,  A  hav- 
ing none,  is  void;  but  to  the  first  son  of  A,  when  A  shall 
have  one,  is  good,  because  the  devisor  takes  notice  that  A  has 
no  son,  and  intends  a  future  gift.  Fearne  denies  the  dis- 
tinction, and  thinks  all  the  cases  good.  Fearne,  (495),  (534). 
And  see  2  Min.  Ins.  449 ;  Tied.  E,  P.,  §  533 ;  20  Am.  &  Eng. 
Ency.  Law,  927. 1    A  devise  to  a  child  en  ventre  sa  mere  is  un- 

1  Devise  Per  Verba  de  Pr.esexti  and  Per  Verba  de  Futuro. — 
In  20  Am.  &  Eng.  Ency.  Law,  927,  it  is  said:  "Formerly  it  seems 
to  have  been  held,  that  when  an  executory  devise  was  limited 
per  verba  de  prwsenti,  that  is,  when  the  devisee  was  mentioned 
as  a  person  in  esse,  and  the  commencement  of  the  estate  devised 
was  not  expressly  deferred  to  a  future  period,  the  devise  was 
void  unless  the  devisee  was  capable  of  taking  possession  at  the 
death  of  the  devisor;  otherwise  if  the  devise  was  per  verba  de 
futuro,  and  expressly  deferred  to  a  future  period.  This  dis- 
tinction, if  valid  at  all,  is  equally  applicable  to  springing  uses, 


§214]  EXECUTORY    INTERESTS.  255 

donbtedly  good,  though  formerly  doubted.  Fearne  on  Kem. 
(536) ;  3  Lorn.  Dig.  (322)  ;  2  Min.  Ins.  449.  And  a  bequest 
to  a  corporation  not  yet  created  is  good,  if  the  intent  be 
clear  that  the  charter  shall  be  obtained  within  the  time  pre- 
scribed by  the  rule  of  perpetuities,  as  where  the  testator 
directs  his  executors  to  apply  therefor.  Inglis  v.  Trustees, 
&c,  3  Pet.  115;  Lit.  Fund  v.  Dawsons,  &c,  10  Leigh,  152; 
S.  C,  1  Eob.  418;  Kinnaird  v.  Miller,  25  Grat.  107;  2  Min. 
Ins.  444. 

(5).  An  executory  devise  of  a  fee  on  a  fee  is  not  affected 
by  the  failure  of  the  first  estate  to  take  effect  by  lapse  or 
otherwise;  but  that  which  was  to  be  an  executory  devise 
is  accelerated,  and  becomes  a  devise  in  prcesenti,  and  takes 
effect  at  the  death  of  the  testator.  Thus  in  a  devise  "To 
A  and  her  heirs,  but  if  A  dies  under  twenty-one  and  un- 
married, then  to  B  and  his  heirs,"  with  a  residuary  devise 
to  C;  if  A  dies  under  twenty-one  and  unmarried  before  the 
testator  dies,  the  executory  devise  to  B  takes  effect  imme- 
diately on  the  death  of  the  testator,  and  does  not  lapse 
in  favor  of  the  residuary  devisee,  C.  Fearne  (510) ;  2  Wash. 
E.  P.  (355) ;  3  Lorn.  Dig.  314;  Mathis  v.  Hammond,  6  Eich. 

but  its  validity  is  extremely  questionable."  And  in  2  Min.  Ins. 
(4th  ed.),  449,  the  law  is  thus  stated:  "At  present,  however,  this 
needless  distinction  between  limitations  to  non-existing  persons, 
per  verba  cle  pncsenti  and  per  verba  de  future-,  is  very  little  re- 
garded, and  is  allowed  to  affect  those  cases  only  where  there  is 
not  the  least  circumstance  from  which  to  collect  the  testator's 
or  grantor's  intention  of  anything  else  than  an  immediate  limita- 
tion to  take  effect  in  pncsenti."  Jarman'  seems  to  ignore  the  dis- 
tinction. Thus  in  speaking  of  an  executory  devise  of  a  freehold 
to  commence  in  future-,  he  says  (2  Jarm.  Wills,  483)  :  "The  first- 
mentioned  species  of  executory  estate  occurs  as  well  when  the 
devise  is  future  in  its  operation  from  the  non-existence  of  the  ob- 
ject at  the  death  of  the  testator,  as  when  it  is  future  in  the  ex- 
press terms  of  its  limitation.  Thus  a  devise  to  the  children  of  A, 
who  happens  to  have  no  child  at  the  death  of  the  testator,  or 
to  the  heirs  of  the  body  of  A,  a  person  then  living,  is  executory 
for  the  reason  suggested." 


256  REAL    PROPERTY.  [Chap.  11 

Eq.  (S.  C.)  121;  Avehjn  v.  Ward,  1  Ves.  Sr.  420.     But  see 
Allen  v.  Parham,  5  Munf.  (Va.)  467. 

§  215.  Rule  of  Perpetuities  for  Executory  Interests. — Any 
executory  interest  which,  by  possibility,  may  not  take  effect 
until  after  lives  in  being  and  twenty-one  years  and  ten 
months,  is  ipso  facto  and  ab  initio  void.  In  other  words,  the 
executory  interest  is  void  for  remoteness  if  at  its  creation 
there  exists  a  possibility  that  it  may  not  take  effect  during 
any  fixed  number  of  now  existing  lives,  nor  within  twenty- 
one  years  and  ten  months  after  the  expiration  of  such  lives, 
even  though  it  is  highly  probable,  or,  indeed,  almost  certain, 
that  it  will  take  effect  within  the  time  prescribed.  In  the 
application  of  the  rule,  twenty-one  years  are  allowed  inde- 
pendently of  any  person's  actual  minority,  but  the  ten  months 
(period  of  gestation)  are  allowed  only  when  there  is  a  child 
en  ventre  sa  mere.  See  2  Bl.  Com.  (Sharswood's  ed.)  174,  n. 
14;  2  Bl.  Com.  (Cooley's  ed.)  175,  n.  12;  Tied.  E.  P.,  §  544; 
1  Jarm.  Wills  (5  Am.  ed.),  502;  Wins.  B.  P.  (.318);  Gray, 
Eule  against  Perpetuities,  §§  201-268;  90  Am.  Dec.  101- 
106,  n. ;  18  Am.  &  Eng.  Ency.  Law,  335 ;  Mc  Arthur  v.  Scott, 
113  U.  S.  340,  382;  Hopkins  v.  Grimshaiv,  165  U.  S.  342, 
355 ;  Stone  v.  Nicholson,  27  Grat.  1 ;  Woodruff  v.  Pleasants, 
81  Va.  37,  42;  Otterback  v.  Bohrer,  87  Va.  548;  Whelan  v. 
Reilly,  3  W.  Va.  597,  612.1 

1  Rule  against  Perpetuities. — In  Hopkins  v.  Grimshaw,  165  U. 
S.  342,  355,  the  rule  is  stated  by  Gray,  J.,  as  follows:  "An  es- 
tate, legal  or  equitable,  granted  or  devised  by  one  person  to  an- 
other, which,  by  the  terms  of  the  instrument  creating  it,  is  not 
to  vest  until  the  happening  of  a  contingency,  which,  by  possi- 
bility, may  not  occur  within  the  period  of  a  life  or  lives  in  being 
(treating  a  child  in  its  mother's  womb  as  in  being),  and  twenty- 
one  years  afterwards,  is  void  for  remoteness."  That  a  child  en 
ventre  sa  mere  may  be  considered  a  life  in  being,  so  as  to  omit 
in  the  statement  of  the  rule  reference  to  the  period  of  gestation, 
see  Gray,  Perpetuities,  §  201,  §  220;  1  Jarm.  Wills,  518;  18  Am.  & 
Eng.  Ency.  Law,  341.  And  the  same  authorities  show  that  there 
may  be  ttoo  periods  of  gestation  allowed  in  the  same  limitation; 
for  in  a  devise  to  such  of  the  testator's  grandchildren  as  shall 


§§  214-216]  EXECUTORY    INTERESTS.  257 

J;  216.  Examples  of  Executory  Interests  Violating  the 
Kule  against  Perpetuities. 

(1).  Devise  to  the  first  son  of  A  (A  being  alive  at  the 
testator's  death)  who  shall  attain  the  age  of  twenty-five  years. 
For  if  A  were  to  die  leaving  a  son  a  few  months  old,  the 

reach  the  age  of  twenty-one,  a  child  of  the  testator  might  be 
en  ventre  sa  mere  at  the  testator's  death,  and  such  a  child  might 
die  leaving  a  posthumous  child,  who  would  nevertheless  be  en- 
titled on  reaching  the  required  age.  See  Gray,  Perpetuities,  § 
221,  §  370;  IS  Am.  &  Eng.  Ency.  Law,  341.  Indeed,  Gray  (Per- 
petuities, §  222)  supposes  a  case  where  a  third  period  of  gesta- 
tion might  be  allowed.  And  in  Jarman,  Wills,  p.  517,  it  is  said: 
"To  treat  the  period  of  gestation,  however,  as  an  adjunct  to  the 
lives,  is  not,  perhaps,  quite  correct.  It  seems  more  proper  to 
say  that  the  rule  of  law  admits  of  the  absolute  ownership  being 
suspended  for  a  life,  or  lives  in  being,  and  twenty-one  years 
afterwards,  and  that,  for  the  purposes  of  the  rule,  a  child  en 
ventre  sa  mere  is  considered  as  a  life  in  being." 

In  2  Min.  Ins.  (4th  ed.)  438,  the  rule  against  perpetuities  is 
thus  stated:  "Every  executory  limitation,  whether  of  real  or 
personal  estate,  in  order  to  be  valid,  must  vest  in  interest,  if  at 
all,  within  a  life  or  lives  in  being,  and  the  utmost  period  of  ges- 
tation (ten  months  in  Virginia),  and  twenty-one  years  there- 
after." And  in  18  Am.  &  Eng.  Ency.  Law,  347,  it  is  said:  "The 
essential  requirement  is  that  the  limitation  be  such  that  it  can- 
not possibly  take  effect  beyond  the  prescribed  period;  but  a  limita- 
tion is  not  void  merely  because  it  will  not  certainly  take  effect 
within  that  period,  since  a  valid  limitation  might  be  one  which 
must  take  effect  within  the  period,  or  not  at  all."  And  see  Gray, 
Perpetuities,  §§  201,  214,  325. 

In  Williams,  Real  Property  (17th  ed.),  465,  the  effect  of  the 
rule  against  perpetuities  is  thus  described:  "It  requires  every 
future  estate  limited  to  arise  by  way  of  shifting  [or  springing] 
use  or  executory  devise  to  be  such  as  must  necessarily  arise 
[if  at  all]  within  the  compass  of  existing  lives,  and  twenty-one 
years  after,  with  the  possible  addition  of  the  period  of  gestation, 
in  the  case  of  some  person  entitled  being  a  posthumous  child. 
But  if  no  lives  are  fixed  on,  then  the  term  of  twenty-one  years 
only  is  allowed.  And  every  executory  estate  which  might  in  any 
event  transgress  the  limits  so  fixed,  will,  from  its  commencement, 
be  absolutely  void.  .  .  .  When  a  gift  is  infected  with  the  vice 
of  its  possibly  exceeding  the  prescribed  limit,  it  is  at  once  and 

17 


258  REAL    PROPERTY.  [Chap.  11 

estate  of  the  son  would  take  effect  at  a  time  exceeding  the 
period  of  twenty-one  years  from  the  death  of  A,  whose  life  is, 
in  this  case,  the  life  in  being.  Wms.  Real  Prop.  (319) ; 
Gray,  §§  215,  369-375. 

(2).  Devise  to  the  first  son  of  A  (A  being  alive  at  the 
testator's  death)  who  shall  attain  the  age  of  twenty-one 
years  and  ten  months. 

(3).  Devise  to  such  of  the  testator's  grandchildren  as  shall 
attain  the  age  of  twenty-five  years.  Newman  v.  Newman, 
10  Sim.  51;  Leake  v.  Robinson,  2  Merivale,  363;  Stuart  v. 
Cockerell,  5  Ch.  App.  712;  Gray,  §§  370-374. 

(4).  Devise  to  such  of  the  testator's  grandchildren  as 
shall  survive  both  their  parents,  viz.,  the  testator's  child, 
and  his  or  her  wife  or  husband.  For  the  testator's  child 
may  marry  some  person  unborn  at  the  testator's  death; 
and  as  the  gift  to  the  grandchildren  is  not  to  take  effect  until 
after  the  death  of  both  of  their  parents,  this,  in  the  case  sup- 
posed, would  be  after  a  life  not  in  being  at  the  testator's 
death  which  makes  the  gift  to  the  grandchildren  void  for 
remoteness.  Gray,  §  370,  note  1;  also  §  214.  See  Stone  v. 
Nicholson,  27  Grat.  1. 

§  217.  Examples  of  Executory  Interests  not  Violating  the 
Rule  against  Perpetuities. 

(1).  Devise  to  the  first  son  of  A  (A  being  alive  at  the 
testator's  death)  who  shall  reach  the  age  of  twenty-one 
years.     1  Jarm.  Wills,  515;  Wms.  E.  P.  (17th  ed.)  465-'66. 

(2).  Devise  to  such  of  the  testator's  grandchildren  as 
shall  attain  the  age  of  twenty-one  years.  1  Jarm.  Wills,  542 ; 
Gray,  §  370;  Woodruff  v.  Pleasants,  81  Va.  37,  42. 

(3).  Devise  of  the  income  of  property  to  be  accumulated 
during  the  lives  of  all  the  testator's  children,  grandchildren, 

altogether  void,  both  at  law  and  in  equity.  And  even  though  in 
its  actual  event,  it  should  fall  greatly  within  such  limit,  yet  it 
is  still  as  absolutely  void  as  if  the  event  had  occurred  which 
would  have  taken  it  beyond  the  boundary."  See  London,  &c, 
R.  Co.  v.  Gomm,  20  Ch.  D.  562. 


§§  216-218]  EXECUTORY    INTERESTS.  259 

and  great-grandchildren,  who  were  living  at  the  time  of  his 
death,  for  the  benefit  of  certain  future  descendants  of  the 
testator,  to  be  living  at  the  death  of  the  survivor  of  the 
aforesaid  children,  grandchildren,  and  great-grandchildren. 
Thellusson  v.  Woodford,  4  Vesey,  221;  11  Id.  112.  This 
extraordinary  limitation  occurred  in  the  will  of  Peter  Thel- 
lusson, an  English  merchant  of  great  wealth,  and  was  sus- 
tained as  being  within  the  limits  prescribed  by  the  Rule 
against  Perpetuities.  Wms.  P.  P.  (320)  ;  Gray,  §§  190,  216, 
686;  2  Min.  Ins.  (4th  ed.)  451-454. 

(4).  Testator  wills  that  part  of  his  estate  devised  in  trust 
shall  not  be  divided  "until  the  youngest  child  of  all  my 
said  children  shall  be  twenty-one  years  of  age";  and  in  the 
same  paragraph  directs  that  "when  the  youngest  child  now, 
and  which  shall  hereafter  be  born,  of  all  my  said  children 
shall  have  reached,  or,  if  living,  would  have  reached  the  age 
of  twenty-one  years,"  then  the  trustee  shall  sell  the  property 
and  divide  the  proceeds  "among  such  of  my  children  as  may 
then  be  living,  and  the  descendants  of  those  who  may  have 
died  (they  taking  a  parent's  part)."  Held,  (1)  that  the  tes- 
tator refers  to  his  youngest  grandchild;  and  (2),  that  the 
period  of  division  is  not  too  remote,  as  the  estate  must  vest 
during  lives  in  being,  and  the  utmost  period  of  gestation, 
and  twenty-one  years  thereafter.  Otterback  v.  Bohrer,  87  Va. 
548.     See  Gray,  §  370. 

§  218.  Upon  What  State  of  Facts  Does  Remoteness  De- 
pend.— In  applying  the  Rule  against  Perpetuities,  it  should 
be  borne  in  mind  that  the  question  of  remoteness  depends 
upon  the  state  of  facts  at  the  time  of  the  testator's  death, 
though  differing  from  that  existing  at  the  date  of  the  will. 
See  1  Jarm.  Wills  (5th  Am.  ed.),  519;  Gray,  Perpetuities, 
§  231;  18  Am.  &  Eng.  Ency.  Law,  341,  347;  McArthur  v. 
Scott,  113  U.  S.  340,  382;  Pleasants  v.  Woodruff,  81  Va.  37, 
42.  It  follows  that  a  devise  which  would  have  been  void 
if  the  testator  had  died  immediately  after  making  his  will 
may  be  valid  under  the  circumstances  existing  at  his  death. 


260  REAL    PROPERTY.  [Chap.  11 

Thus,  in  the  example  given  above,  "Devise  to  the  first  son  of  A 
(A  being  alive  at  the  testator's  death)  who  shall  attain  the 
age  of  twenty-five  years,"  which  is  void  for  remoteness,  if  A 
were  to  die  before  the  testator,  leaving  a  son,  the  gift  to  the 
son  would  be  valid ;  for  though  the  estate  of  the  son  is  not  to 
vest  until  the  son  reaches  twenty-five,  yet  it  must  necessarily 
take  effect,  if  at  all,  within  a  life  in  being  at  the  testator's 
death,  viz.,  the  son's  own  life.  And  the  devise  would  also  be 
valid  if  a  son  of  A  had  attained  the  age  of  twenty-five  before 
the  testator's  death,  although  A  survived  the  testator.  See 
Wms.  Eeal  Prop.  (17th  ed.),  note  (1),  citing  1  Jarm.  on 
Wills  (4th  ed.)  354;  (5th  Am.  ed.  529)  ;  Picl'en  v.  Matthews, 
10  Ch.  D.  261.  And  see  Gray,  Eule  against  Perpetuities, 
§  379.1 

1  Past  the  Age  of  Child-Bearing. — No  matter  how  old  a  per- 
son may  be  at  the  death  of  the  testator,  the  law  still  presumes 
the  possibility  of  issue,  and  thus  a  gift  may  be  void  for  remote- 
ness. See  18  Am.  and  Eng.  Law,  347;  In  re  Dawson,  39  Ch.  D., 
155;  Carney  v.  Kain  (W.  Va.),  23  S.  E.  650,  657,  citing  List  v. 
Rodney,  83  Pa.  St.  483,  492.  In  Gray  on  Perpetuities,  the  law 
is  thus  stated:  "In  one  class  of  cases,  from  the  difficulty  and 
delicacy  of  determining  the  question  involved,  the  occurrence  of 
a  contingent  event  beyond  the  required  limits  will  be  considered 
as  possible,  although  it  is  physically  impossible.  If  a  devise  be 
made  to  those  of  a  woman's  children  who  reach  twenty-five,  the 
gift  is  too  remote,  although  the  woman  be  of  such  an  age  [at  the 
testator's  death]  that  it  is  certain  that  she  can  have  no  more  chil- 
dren, and  therefore  the  event  must  occur,  if  at  all,  in  the  lives  of 
persons  in  being,  viz.:  of  her  children  alive  at  the  testator's 
death.  In  other  words,  for  the  purpose  of  determining  questions 
of  remoteness,  men  and  women  are  deemed  capable  of  having 
issue  so  long  as  they  live.  This  was  held  by  Sir  Lloyd  Kenyon  in 
Jee  v.  Audley,  1  Cox,  Ch.  324,  and  his  decision  has  never  been 
questioned."  Jee  v.  Audley  is  followed  in  the  case  of  In  re 
Daivson,  supra;  and  en  a  question  of  remoteness,  it  was  held  that 
evidence  was  inadmissible  to  show  that  a  woman  "over  sixty  years 
of  age  at  the  testator's  death  was  past  the  age  of  child-bearing. 


§§218-220]  EXECUTORY    INTERESTS.  261 

§  219.  Are  There  Two  Eules  against  Perpetuities,  One  for 
Contingent  Remainders  and  Another  for  Executory  Inter- 
ests?— Mr.  Williams,  in  his  authoritative  work  on  Real  Prop- 
erty, contends  that  there  are  two  different  rules.  See  Wms. 
R.  P.  (17th  ed.)  469;  ante,  §  187,  "Rule  of  Perpetuities  for 
Contingent  Remainders."  But  in  Gray's  Rule  against  Per- 
petuities, it  is  argued,  with  great  force  and  learning,  that 
there  is  but  one  rule  against  perpetuities,  namely,  that  "No 
interest  subject  to  a  condition  precedent  is  good,  unless  the 
condition  must  be  filled,  if  at  all,  within  twenty-one  years 
after  some  life  in  being  at  the  creation  of  the  interest,"  and 
that  this  rule  applies  alike  to  contingent  remainders  and  to 
executory  interests.  See  Gray,  §  201 ;  also  §§  284-298.  And 
see,  for  further  discussion  of  the  question,  1  Jarm.  Wills, 
521-'28;  3  Id.  App'x,  711;  18  Am.  and  Eng.  Ency.  Law, 
342,  note;  20  Id.  876,  note;  90  Am.  Dec.  103,  note.  But 
the  view  of  Mr.  Williams  has  recently  received  judicial  ap- 
proval in  England,  in  Whitby  v.  Mitchell,  42  Ch.  D.  494  (also 
44  Ch.  D.  85),  where  it  is  held  that  a  remainder  limited  in 
a  settlement  to  the  children  of  an  unborn  person,  after  a  life 
estate  to  the  unborn  parent,  was  void,  and  could  not  be  made 
good  by  saying,  "provided  that  such  children  shall  be  born 
within  a  life  or  lives  now  in  being,  and  twenty-one  years 
afterwards";  thus  showing  that  the  rule  for  contingent  re- 
mainders, which  declares  that  an  estate  cannot  be  limited 
to  an  unborn  person  for  life,  followed  by  an  estate  to  a  child 
of  such  unborn  person,  is  considered  in  England  an 
independent  rule,  and  not  merely  an  instance  of  the  rule 
by  which  executory  interests  are  restrained.  For  further 
explanation  of  the  decision  in  Whitby  v.  Mitchell,  see  Wms. 
R.  P.  17th  ed.)  469-472;  18  Am.  and  Eng.  Ency.  Law,  342, 
note.    See,  also,  In  re  Frost,  43  Ch.  D.  246. 

§  220.  Are  there  Two  Rules  against  Perpetuities  in  Vir- 
ginia?— Whether  Professor  Gray  is  right  or  not  in  his  con- 
tention that  there  never  was  but  one  rule,  namely,  the  rule 
requiring  future  estates  to  take  effect  during  existing  lives, 


262  REAL    PROPERTY.  [Chap.  11 

etc.,  it  would  seem  necessary,  under  the  Virginia  statute, 
to  apply  this  rule  to  contingent  remainders,  in  order  to 
prevent  them  from  tying  up  lands  beyond  the  bounds  of 
public  policy.  At  common  law,  a  safeguard  against  the  in- 
alienability of  lands  by  the  creation  of  contingent  remainders 
was  found  in  the  rules  governing  the  seisin,  and  in  the  re- 
quirement that  a  contingent  freehold  remainder  must  vest, 
if  at  all,  during  the  particular  estate,  or  at  the  moment  of  its 
termination.  This  rule  was  re-enforced  by  the  rule  against 
perpetuities  for  contingent  remainders,  namely,  that  no  estate 
can  be  given  an  unborn  person  for  his  life,  followed  by  a 
remainder  to  the  child  of  such  unborn  person.  (See  ante, 
§  187.)  But  now,  in  Virginia,  by  statute,  "A  contingent  re- 
mainder shall  in  no  case  fail  for  want  of  a  particular  estate 
to  support  it,"  and  the  remainder  may  vest  at  any  time  in 
the  future  after  the  particular  estate  has  terminated.  Thus, 
if  there  be  a  deed  "To  A  for  life,  remainder  to  the  first  unborn 
son  of  A  who  shall  reach  the  age  of  forty-five  years,"  A 
might  not  have  until  ten  months  after  A's  death,  and  then  the 
remainder  could  not  vest  until  the  son  reached  the  age  of 
forty-five  years ;  and  yet  the  remainder  would  not  fail,  under 
the  Virginia  statute,  for  want  of  a  freehold  support.  But 
this  might  tie  up  the  land  beyond  twenty-one  years  after  ex- 
isting lives  (in  this  case  the  life  of  A),  unless  the  rule  of 
perpetuities  for  executory  interests  be  applied  to  the  case ; 
and  this,  it  is  believed,  would  be  done  in  Virginia.  See  Moon 
v.  Stone,  19  Grat.  130;  Stone  v.  Nicholson,  27  Id.  1.  And 
see,  in  accord  with  this  view,  Hopkins,  Beal  Prop.  326 ;  Gray, 
Perpetuities,  §  286;  18  Am.  and  Eng.  Ency.  Law,  342.  In 
20  Am.  and  Eng.  Ency.  Law,  894,  it  is  said :  "It  would  seem 
that  legislation  which,  either  directly  or  indirectly,  has  the 
effect  of  making  a  contingent  remainder  indestructible  would, 
almost  necessarily,  have  the  further  effect  of  subjecting  it  to 
the  rule  against  perpetuities,  since  it  was  originally  exempted 


§§  220, 221]      EXECUTORY  INTERESTS.  263 

from  its  operation  solely  on  the  ground  of  its  destructible 
character."1 

§  221.  Definite  and  Indefinite  Failure  of  Issue. — A  failure 
of  issue  is  called  definite  when  it  is  to  take  effect  by  the 
terms  of  the  limitation  at  some  certain  time;  it  is  called 
indefinite  when  it  may  occur  at  any  time  in  the  future.  At 
common  law  the  presumption  is  in  favor  of   an  indefinite 

^^Rule  of  Perpetuities  for  Contingent  Remainders. — The  Eng- 
lish statute  of  40  and  41  Vict.,  ch.  33,  protecting  a  contingent  re- 
mainder (created  by  any  instrument  executed  or  will  republished 
on  or  after  the  2nd  of  August,  1877)  from  destruction  by  reason 
of  failure  to  take  effect  during  the  continuance  of  the  particular 
estate  or  eo  Instanti  that  it  determines,  guards  against  the  dan- 
ger of  thereby  causing  a  perpetuity  by  requiring  that  the  re- 
mainder, to  be  entitled  to  protection,  shall  be  so  limited  that  it 
would  have  been  valid  if  originally  created  as  a  shifting  use  or 
executory  devise.  Wms.  R.  P.  419;  18  Am.  &  Eng.  Ency.  Law, 
342.  And  see  Wms.  R.  P.  468,  where  the  statute  is  thus  explained : 
"We  have  now  seen,  however,  that  for  a  limitation  to  be  valid 
as  a  shifting  use  or  executory  devise,  it  must  conform  to  the  rule 
against  perpetuities.  No  contingent  remainder  will,  therefore, 
be  preserved  by  this  act  unless  it  be  such  as  must  necessarily 
vest  within  the  duration  of  existing  lives  and  twenty-one  years 
after.  Thus,  if  land  be  granted  after  1S77  to  A,  a  bachelor,  for 
life,  and  after  his  death  to  his  first  son  who  shall  attain  the  age 
of  twenty-four  years,  the  gift  to  A's  son  is  good  as  a  contingent 
remainder,  and  may  take  effect  if  a  son  of  A  attain  twenty-four 
in  A's  lifetime.  But  if  A  die  before  any  son  of  his  attain  twenty- 
four,  the  contingent  remainder  to  A's  son  will  fail  altogether  by  the 
common  law  rule,  as  not  having  vested  before  or  at  the  termina- 
tion of  the  particular  estate.  And  it  will  not  be  saved  by  the 
Act  of  1877;  because,  as  we  have  seen,  it  would  not  have  been 
valid  if  originally  created  as  a  shifting  use  or  executory  devise." 
It  will  be  observed,  however,  that  in  the  case  supposed  the  unborn 
son  of  A  has,  under  the  English  statute,  a  chance  to  obtain  the 
land,  as  he  may  reach  the  age  of  twenty-four  in  A's  lifetime. 
The  Virginia  statute,  on  the  other  hand — "a  contingent  remainder 
shall  in  no  case  fail  for  want  of  a  particular  estate  to  support  it" 
— includes  all  contingent  remainders;  and,  in  thus  rendering 
them  indestructible,  subjects  them  to  the  rule  against  perpetuities 
for  executory  interests.    Applying  this  rule  to  the  case  supposed, 


264  REAL    PROPERTY.  [Chap.  11 

failure,  when  a  limitation  over  is  to  take  effect  on  death  with- 
out issue.  Thus,  "Devise  to  A  for  life,  and  if  A  die  without 
issue,  then  to  B  and  his  heirs,"  imports  an  indefinite  failure 
of  the  issue  of  A;  and  the  meaning  is  that  B  is  to  take,  not 
only  in  case  A  has  no  issue  living  at  the  time  of  his  death, 
btu  also  in  case  A  has  issue  living  at  his  death,  if  in  the  there- 
after such  issue  should  fail  at  any  future  time.  In  other 
words,  A  is  said  to  "die  without  issue"  whenever  A  is  dead 
and  A's  issue  is  extinct,  no  matter  when  the  issue  fails.  In 
this  sense  Adam  would  have  "died  without  issue"  if  there  had 
been  no  survivors  of  the  flood,  and  might  even  do  so  now 
if  all  of  his  descendants  should  perish  from  off  the  face  of  the 
earth.  Wins.  R.  P.  290;  3  Jarm.  Wills,  296;  Gray  Perpe- 
tuities, §§  211-213;  11  Am.  &  Eng.  Ency.  Law,  899-912.1 

the  remainder  to  the  first  unborn  son  who  shall  reach  the  age  of 
twenty-four,  is  void  ab  initio,  and  this  regardless  of  the  fact  that 
he  may,  or  actually  does,  reach  the  required  age  before  his  father 
dies.  See  Abbiss  v.  Burney,  17  Ch.  D.  211;  Gray,  Perpetuities, 
§  325. 

But  it  does  not  follow  that  because  now  in  Virginia  contingent 
remainders,  as  indestructible  interests,  are  subjected  to  the  rule 
of  perpetuities  for  executory  interests,  that  therefore  they  are 
exempted  from  the  operation  of  the  rule  (now  declared  to  exist 
in  England)  which  forbids  the  gift  of  an  estate  to  an  unborn 
person  for  life,  followed  by  a  remainder  to  the  child  of  such  un- 
born person.  For  if  the  decision  in  Whitby  v.  Mitchell,  42  Ch. 
D.,  494,  be  followed  in  Virginia,  the  limitation  to  the  child  of  an 
unborn  parent,  after  a  life  estate  to  the  parent,  is  not  validated 
by  expressly  confining  the  remainder  to  such  child  of  the  unborn 
parent  as  shall  be  born  within  the  compass  of  lives  existing  at 
the  time  of  the  gift,  and  twenty-one  years  afterwards  (see  ante, 
§  219);  and  to  such  a  limitation  the  rule  forbidding  successive 
life  estates  to  unborn  persons  is  still  applicable.  And  see  2 
Min.  Ins.  (4th  ed.),  414,  which  seems  to  recognize  the  old  doc- 
trine forbidding  a  possibility  on  a  possibility,  from  which  the 
rule  invalidating  a  limitation,  by  way  of  remainder,  to  the  un- 
born child  of  an  unborn  child,  after  a  life  estate  to  the  unborn 
parent,  has  been  said  to  be  derived.  But  see  L.  Q.  R.,  July, 
1898,  p.  234. 

1  Definite  and  Indefinite  Failure  of  Issue. — The  meaning  of 


§§  221,  222]  EXECUTORY    INTERESTS.  265 

§  222.  Effect  of  a  Limitation  Over,  Dependent  on  if  He 
Die  Without  Issue,  on  a  Prior  Estate  for  Life. — Take  the 
limitation,  "To  A  for  life,  and  if  A  die  without  issue,  then 
to  B  and  his  heirs,'"'  and  suppose  it  to  occur  in  a  will,  and 

"definite"  and  "indefinite,"  as  applied  to  a  failure  of  issue,  is  thus 
clearly  stated  by  Kent:  "A  definite  failure  of  issue  is  when  a 
precise  time  is  fixed  by  the  will  for  the  failure  of  issue,  as  in 
the  case  of  a  devise  to  A,  but  if  he  dies  xcithout  lawful  issue  living 
at  the  time  of  his  death.  An  indefinite  failure  of  issue  is  a  propo- 
sition the  very  converse  of  the  other,  and  means  a  failure  of  is- 
sue, whenever  it  shall  happen,  sooner  or  later,  without  any  fixed, 
certain,  or  definite  period  within  which  it  must  happen.  It  means 
the  period  when  the  issue  or  descendants  of  the  first  taker  shall 
become  extinct,  and  when  there  is  no  longer  any  issue  of  the  is- 
sue of  the  grantee,  without  reference  to  any  particular  time  or 
any  particular  event."     4  Kent's  Com.   (11th  ed.),*274. 

The  rule  is  well  settled  that  words  referring  to  the  death  of  a 
person  without  issue,  unexplained  by  the  context,  and  in  the 
absence  of  a  statute  changing  their  meaning,  are  construed  to 
import  a  general  indefinite  failure  of  issue — i.  e.,  a  failure  or 
extinction  of  issue  at  any  period.     3  Jarm.  Wills,  297. 

This  construction  of  the  words  "dying  without  issue,"  which  is 
called  the  legal  as  distinguished  from  the  vulgar  construction, 
had  its  origin,  no  doubt,  in  the  language  of  the  statute  of  De 
Donis,  by  which  estates-tail  were  created.  The  statute  declares 
that  land  given  to  one  and  the  heirs  of  his  body  "shall  remain 
unto  the  issue  of  them  to  whom  it  was  given  after  their  death, 
or  shall  revert  unto  the  giver,  or  his  heirs,  if  issue  fail  (whereas 
there  is  no  issue  at  all),  or  if  any  issue  be,  and  fail  by  death,  or 
heir  of  the  body  of  such  issue  failing."  Westm.  2,  13  Ed.  I.,  c. 
1,  1285;  2  Washb.  Real  Prop.,  p.  694,  app'x.  "It  was  the  com- 
mand of  the  statute,"  says  Kent,  C,  in  Anderson  v.  Jackson,  16 
Johns  R.  382,  405,  "that  probably  led  the  courts  to  give  a  uniform 
construction  to  the  words,  in  a  deed  or  will,  dying  without  issue; 
for  the  statute  said  that  the  land  should  remain  unto  the  issue 
of  the  grantee  until  such  issue  fail:'1  And  see  Hawkins,  Wills, 
205. 

But  the  common  law  presumption  of  an  indefinite  failure  of  is- 
sue is  a  rule  of  construction,  and  not  a  rule  of  law;  and  it  may 
be  rebutted  by  the  context  if  it  clearly  appears  that  a  definite 
failure  was  intended.  3  Jarm.  Wills,  308.  Thus  words  may  be 
used  clearly  confining  the  failure  of  issue  to  the  death   of  the 


266  REAL    PROPERTY.  [Chap.  11 

that  the  failure  of  issue  is  indefinite.  Then  A  takes  a  fee 
tail,  and  B  a  vested  remainder  in  fee  simple.  A's  life  estate 
is  raised  (or  enlarged)  to  a  fee  tail  by  implication,  in  order 
to  effectuate  the  intent  of  the  testator.  The  grounds  of  the 
implication  may  be  thus  stated.  The  word  "issue"  in  a  will 
is  equivalent  to  "heirs  of  the  body."  Hence,  a  devise,  "To  A 
and  his  issue,"  gives  A  an  estate  tail;  and  so  does  a  devise 
"To  A  for  life,  remainder  to  his  issue,"  by  the  Eule  in 
Shelley's  Case.  Now,  when  the  failure  of  issue  is  indefinite 
(i.  e.,  a  failure  at  any  time  in  the  hereafter)  the  word  "issue" 
is  not  confined  to  descendants  in  the  first  degree  (i.  e., 
children),  but  comprises  all  the  descendants,  as  a  class  of  per- 
sons to  take  indefinitely  in  succession  (i.  e.,  by  continuous 
descent  to  children's  children  in  infinitum).  If  now  there 
is  a  devise  "To  A  for  life,  and  if  A  die  without  issue,  then  to 
B  and  his  heirs,"  there  is  a  presumption  of  intent  that  if  A 
dies  ivith  issue,  they  are  to  take.  For  the  estate  of  B  is  not 
to  take  effect  unless  A  dies  without  issue,  which  implies  that 
on  A's  death  ivith  issue,  they  are  to  succeed  him.  Hence,  the 
construction  is,  "To  A  for  life,  remainder  to  issue  of  A;  and 

person  who  first  takes,  or  some  other  person;  as  e.  g.,  "If  A  die 
without  issue  living  at  his  death;"  or,  "If  A  shall  die  under  the 
age  of  twenty-one  and  without  issue  {Withers  v.  Sims,  80  Va. 
651);  or,  "If  A  should  die  without  issue,  living  B,  his  brother." 
And,  as  stated  by  Gray  (Perpetuities,  §  213,  n.  2),  "A  definite 
failure  of  a  man's  issue  is  not  necessarily  a  failure  at  his  death; 
a  failure  in  any  particular  generation  or  generations  of  his  de- 
scendants is  equally  definite.  Whether  such  gift  [i.  e.,  a  gift 
to  take  effect  after  a  definite  failure  of  issue]  would  be  too  re- 
mote can  easily  be  determined.  Practically,  the  question  always 
arises  between  a  definite  failure  at  his  own  death,  and  an  in- 
definite failure  in  any  generation."  For  full  discussion  of  the 
expressions  which  have  been  held  to  denote  a  definite  failure  of 
issue,  see  3  Jarm.  Wills  (5th  Am.  ed.),  308-339;  Hawkins,  Wills 
(2nd  Am.  ed.),  205-212;  2  Min.  Ins.  (4th  ed.),  440-443  (where 
the  Virginia  cases  are  collected) ;  11  Am.  &  Eng.  Ency.  Law, 
899-916.  And  see  Burfoot  v.  Burfoots,  2  Leigh  (119);  Taylor  v. 
Taylor  (Pa.),  3  Am.  Rep.  563. 


§§  222, 223]  EXECUTORY    INTERESTS.  267 

if  A  die  without  issue  (i.  e.,  in  default  of  issue  of  A),  remain- 
der to  B  and  his  heirs."  And  this,  as  we  have  seen,  gives  A 
a  fee  tail  by  the  Eule  in  Shelley's  case,  by  which  rule,  "To 
A  for  life,  remainder  to  the  issue  of  A,"  is  equivalent  to 
"To  A  and  his  issue."  Bradley  v.  Cartwright,  L.  R.  2  C. 
P.  511,  524;  Roddy  v.  Fitzgerald,  6  H.  of  L.  Cas.  823,  877; 
Ralph  v.  Carrich,  11  Ch.  D.  883;  Tate  v.  Talley,  3  Call,  354; 
Jiggetts  v.  Davis,  1  Leigh,  419;  Wine  v.  Marl-wood,  31  Grat. 
43,  51;  3  Jarm.  Wills,  283;  2  Min.  Ins.  (4th  ed.)  456.1 

§  223.  Effect  of  the  Words  If  He  Die  Without  Issue  on  a 
Prior  Fee  Simple. — Take  a  devise  "To  A  and  his  heirs ;  and  if 
A  die  without  issue,  then  to  B  and  his  heirs."  Here  again 
A  takes  a  fee  tail,  and  B  has  a  vested  remainder.  A  takes 
the  fee  tail  by  implication  to  effectuate  the  testator's  intent. 
For  the  estate  of  B  is  to  take  effect  if  A  dies  without  issue  at 
any  future  time,  the  failure  of  issue  being  indefinite;  and  of 
course  the  estate  of  A  is  to  end  when  that  of  B  takes  effect. 
The  estate,  however,  given  to  A  in  terms  is  a  fee  simple,  and 
this  does  not  end  by  failure  of  issue;  whereas  such  failure 
makes  the  regular  termination  of  an  estate  tail.  Hence,  it 
is  manifest  that  as  B  is  to  take  on  the  failure  of  the  issue 
of  A,  A  is  to  keep  the  land  only  so  long  as  lie  has  issue,  and 
this  is  a  fee  tail  in  A.  So  the  word  "heirs"  is  construed  to 
mean  "heirs  of  the  body,"  and  this  gives  A  a  fee  tail,  followed 
by  a  vested  remainder  to  B.     But  for  this  construction  B's 

1  Life  Estate  Enlarged  to  a  Fee  Tail. — The  effect  of  the  limita- 
tion in  giving  the  first  taker  a  fee  tail  is  sometimes  ascribed  to 
the  doctrine  that  the  general  overrules  the  particular  intent.  This 
explanation,  however,  has  been  criticised,  and  the  doctrine  of 
"general"  and  "particular"  intent  has  been  pronounced  "as  a  gen- 
eral proposition  incorrect  and  vague,  and  likely  to  lead  in  its 
application  to  erroneous  results."  Doe  v.  Gallini,  5  B.  &  Ad.  640, 
per  Lord  Denman.  See  also  the  strong  observations  of  Lord 
Wensleydale  in  Roddy  v.  Fitzgerald,  6  H.  of  L.  Cas.  823,  877. 
In  3  Jarm.  Wills,  284,  it  is  said  that  the  doctrine  in  its  proper 
sense  is  merely  descriptive  of  the  operation  of  the  Rule  in  Shel- 
ley's Case. 


268  REAL    PROPERTY.  [Chap.  11 

estate  would  be  void.  For  it  cannot  be  a  remainder  after  a 
fee  simple;  and  as  an  executory  devise  it  would  be  void  as 
violating  the  Eule  against  Perpetuities,  being  limited  after 
in  indefinite  failure  of  the  issue  of  A,  which  might  not  occur 
for  many  generations.  Thus  we  see  that  the  legal  effect  of  a 
devise  "To  A  for  life,  and  if  he  die  without  issue,  remainder 
B  and  his  heirs/'  is  identical  with  that  of  "To  A  Mid  his 
heirs,  and  if  he  die  without  issue,  remainder  to  B  and  his 
heirs,"  and  that  in  each  case  A  has  a  fee  tail,  followed  by  a 
vested  remainder.  In  the  one  case  A's  life  estate  is  enlarged, 
and  in  the  other  A's  fee  simple  is  reduced,  to  a  fee  tail ;  or,  as 
has  been  said,  the  life  estate  is  "levelled  up,"  and  the  fee 
simple  "levelled  down,"  and  both  meet  at  the  fee  tail. 
Jiggetts  v.  Davis,  1  Leigh  (368),  (418)  ;  Barber  v.  Pitts- 
burgh, etc.,  R.  Co.,  166  U.  S.  83,  104.1 

1  Fee  Simple  Reduced  to  a  Fee  Tail. — The  reason  for  this  con- 
struction is  thus  stated  by  Preston:  "A  gift  to  a  man  and  his 
heirs,  and  if  he  shall  die  without  heirs  of  his  body,  or  without 
issue  male  of  his  body,  .  .  .  or  in  like  form,  then  to  others, 
conveys  an  estate  tail;  for  the  subsequent  words  demonstrate  the 
qualified  sense  in  which  the  word  heirs  is  used;  and  the  several 
parts  of  the  instrument  show  that  no  heirs  are  to  be  entitled 
under  the  terms  of  the  gift,  except  those  which  are  the  issue  of 
the  body  of  the  donee."  And  again:  "The  whole  instrument 
taken  together  evinces  the  meaning  of  the  author  of  the  limita- 
tion to  be  that  the  property  which  is  the  subject  of  his  gift  shall 
revert  to  himself  or  be  enjoyed  by  some  other  person,  as  soon  as 
there  shall  be  a  failure  of  the  heirs  of  the  body  of  the  person  who 
takes  under  the  gift  in  question;  and  no  construction  save  that 
only  which  creates  an  estate  tail  can  give  effect  to  this  intention. 
The  operation  of  the  subsequent  clause  is  to  abridge  and  correct 
the  words  of  limitation  used  in  the  preceding  sentence  by  ex- 
plaining their  import;  and  the  words  in  this  clause  are  allowed 
to  have  this  effect  for  the  purpose  of  conforming  to  the  will  of 
the  donor,  and  ascribing  to  him  some  meaning  in  the  use  of  the 
different  clauses  of  the  deed."  2  Prest.  Est.  505.  See  also  Bells 
v.  Gillespie,  5  Rand.  288,  306;  Jiggets  v.  Davis,  1  Leigh  41S. 

It  will  be  noticed  that,  in  the  above  extract,  Preston  is  speak- 
ing of  a  deed.  And  it  seems  to  be  settled  that  the  effect  of  the 
limitation  noio  under  consideration  is  the  same  in  deeds  and  wills, 


§§223,224]  EXECUTORY    INTERESTS.  269 

§  224.  No  Estate  Tail  by  Implication  when  the  Failure  of 
Issue  is  Definite. — In  neither  of  the  two  cases  considered  un- 
der the  two  preceding  sections  can  there  be  an  estate  tail 
raised  by  implication  when  the  failure  of  issue  is  definite. 
Taylor  v.  Taylor  (Pa.),  3  Am.  Eep.  565. 

(1).  Devise  to  A  for  life,  and  if  A  die  without  issue  liv- 
ing at  his  death,  remainder  to  B  and  his  heirs. 

(a).  In  England.  A  takes  an  estate  for  life,  and  B  has 
a  remainder  in  fee,  contingent  on  A's  dying  without  issue 
living  at  his  death.  Plunlett  v.  Holmes,  1  Lev.  11;  Baym., 
28;  Lethieullier  v.  Tracy,  3  Atk.  771,  793;  Jenkins  v. 
Hughes,  8  H.  L.  Cas.  571,  593 ;  Coltsmann  v.  Coltsmann,  L. 
E.,  3  H.  L.  132;  Fearne,  Cont.  Bern.  311;  2  Jarm.  Wills, 
138. 

The  better  opinion  in  England  is  that  in  this  case,  as 
well  as  when  A's  estate  is  a  fee  simple,  the  words,  "if  A 
die  without  issue  living  at  his  death,"  are  but  words  of 
contingency,  and  do  not  operate  by  implication  to  create  an 
estate  in  A's  issue  living  at  his  death  (if  any)  as  purchasers. 
Monypenny  v.  Bering,  7  Hare,  588;  Coltsmann  v.  Coltsmann, 
L.  B.,  3  H.  L.  133,  per  Cairns,  C;  3  Jarm.  Wills,  111.  It 
follows,  of  course,  that  as  the  words,  "issue  living  at  his 
death"  are  not  words  of  limitation,  they  cannot  affect  the 
estate  of  A,  which  remains  an  estate  for  life. 

This  construction,  which  refuses  to  raise  by  implication 
an  estate  in  favor  of  the  issue  of  A,  living  at  his  death,  is 
contrary  to  a  dictum  of  Lord  Hardwicke  in  Lethieullier  v. 
Tracy,  3  Atk.  796,  and  is  regretted  by  Jarman  as  involv- 
ing the   "palpable   absurdity  of   making   the   estate   of   the 

the  reasoning  being  equally  applicable  to  both.  The  word  "issue" 
does  not  become  a  word  of  limitation  (this  the  law  does  not  al- 
low in  a  deed),  but  merely  qualifies  the  meaning  of  "heirs,"  show- 
ing that  heirs  of  the  body  are  meant.  See  1  Shepp.  Touchstone, 
*103;  3  Bac.  Abr.  Estates  Tail,  B.;  2  Lorn.  Dig.  222;  Fisher  v. 
Wigg,  1  P.  Wms.  14;  Idle  v.  Cook,  lb.  70;  Morgan  v.  Morgan,  L. 
R.,  10  Eq.  99;  Anderson  v.  Jackson,  16  Johns  R.  382,  405. 


270  REAL    PROPERTY.  [Chap.  11 

ulterior  devisee  (B)  depend  on  the  contingency  of  there 
not  being  issue  (of  A),  and  yet  in  the  alternative  even  (i.  e., 
when  there  is  issue  of  A),  giving  the  property  neither  to  A 
himself  nor  to  such  issue,  but  leaving  it  to  devolve  to  the 
heir-at-law  or  residuary  devisee  (as  the  case  may  be)  of 
the  testator."    3  Jarm.  Wills,  139,  144. 

(b).  In  Virginia.  A  has  life  estate,  and  there  are  two 
remainders  in  fee  upon  a  contingency  with  a  double  aspect, 
both  of  which  are  contingent  until  the  death  of  A.  Upon 
that  event,  if  there  is  issue  of  A  living,  the  first  remainder 
vests  in  each  issue,  and  the  second  is  defeated;  if  there  is 
no  issue  of  A  living  at  his  death,  then  the  second  remainder, 
to  B,  vests  and  takes  effect.  Warners  v.  Mason,  5  Munf .  242 ; 
Wine  v.  Markwood,  31  Grat.  43.    See  §  183,  supra. 

This  contsruction  differs  from  that  which  obtains  in  Eng- 
land in  implying  a  remainder  in  favor  of  the  issue  of  A,  if 
any,  living  at  his  death,  thus  avoiding  the  absurdity  com- 
plained of  by  Jarman.  It  follows  that  the  reason  why  A's 
estate  is  for  life  only  in  Virginia  is  that  though  the  words, 
"if  A  die  without  issue  living  at  his  death,"  are  not  mere 
words  of  contingency,  as  in  England,  yet  they  are  not 
words  of  limitation,  but  words  of  purchase,  comprising  the 
issue  at  a  particular  time ;  and  being  words  of  purchase,  they 
cannot  operate  to  enlarge,  or  in  any  wise  affect,  the  previous 
estate  to  A.  See  Smith  v.  Chapman,  1  H.  and  M.  240,  292, 
298;  Cooper  v.  Hepburn,  15  Grat.  551;  Moon  v.  Stone,  19  Id. 
130,  argument  of  Wm.  Green,  pages  232,  245;  Daniel  v. 
Whartenby,  17  Wall.  639. 

( 2 ) .  Devise  to  A  and  his  heirs,  and  if  A  die  without  issue 
living  at  his  death,  remainder  to  B  and  his  heirs.  Here  A 
takes  a  fee  simple,  and  B  has  a  fee,  good  by  way  of  execu- 
tory devise,  not  too  remote  because  of  the  definite  failure 
of  issue.    Burfoot  v.  Burfoots,  2  Leigh  (119). 

The  reason  that  A's  fee  simple  is  not  in  this  case  reduced 
to  a  fee  tail  is  that  "issue  living  at  his  death"  cannot  be 
regarded  as  words  of  limitation  to  qualify  and  correct  the 


§§  224,  225]  EXECUTORY    INTERESTS.  271 

meaning  of  the  word  "heirs."  To  be  a  word  of  limitation, 
issue  must  embrace  descendants  of  every  degree,  and  can- 
not be  satisfied  by  being  applied  to  descendants  at  a  given 
period;  it  must  "take  in  all  issues  to  the  utmost  of  the 
family,  as  far  as  heirs  of  the  body  would  do."  3  Jarm.  Wills, 
200;  Roddy  v.  Fitzgerald,  6  H.  L.  Cas.  882.  Hence  it  is 
considered  that  the  testator  did  not  intend  by  the  words,  "if 
A  die  without  issue  living  at  his  death,"  to  provide  indefi- 
nitely for  the  issue  of  A,  but  merely  to  limit  a  contingency 
on  which  the  estate  of  A  was  to  be  defeated,  and  that  of  B 
to  take  effect.  For  the  clause,  "if  A  die  without  issue,"  is 
not  absolute  and  indefinite  whensoever  he  die  without  issue, 
but  it  is  with  a  contingency  if  he  die  without  issue  living  at 
his  death.  Pells  v.  Brown,  3  Cro.  (Jac),  540;  Anon.,  3  Dyer, 
354  a;  Barnfield  v.  Wetton,  2  Bos.  &  Pul.,  324;  Coltsmann  v. 
Coltsmann,  L.  E.,  3  H.  L.,  132;  Jiggetts  v.  Davis,  1  Leigh, 
420;  Thomason  v.  Andersons,  4  Id.,  118;  Jackson  v.  Chew, 
12  Wh.,  153;  Abbott  1.  Essex  Co.,  18  How.,  202;  Wins.  E.  P. 
(5th  ed.),  215,  note,  citing  American  cases;  3  Jarm.  Wills, 
ch.  xli. 

§  225.  If  He  Die  Without  Issue  Now  in  Virginia. — By 
statute  taking  effect  January  1,  1820,  the  old  common  law 
presumption  of  an  indefinite  failure  of  issue  was  altered  in 
Virginia,  and  the  presumption  of  a  definite  failure  was 
made  to  take  its  place.  The  language  of  this  most  important 
statute  is  as  follows :  "Every  limitation  in  any  deed  or  will 
contingent  upon  the  dying  of  any  person  without  heirs,  or 
heirs  of  the  body,  or  issue  of  the  body,  or  offspring,  or  de- 
scendant, or  other  relative,  shall  be  construed  a  limitation  to 
take  effect  when  such  person  shall  die  not  having  such  heir, 
or  issue,  or  child,  or  offspring,  or  descendant,  or  other  rela- 
tive, as  the  case  may  be,  living  at  the  time  of  his  death,  or 
born  to  him  within  ten  months  thereafter,  unless  the  inten- 
tion of  such  limitation  be  otherwise  plainly  declared  on  the 
face  of  the  deed  or  will  creating  it."  See  1  Eev.  Code  (1819) 
ch.  99,  §  26;  Code  (1887),  §  2422,     A  similar  statute  was 


272  REAL    PROPERTY.  [Chap.  11 

passed  in  England,  to  take  effect  January  1,  1838.  And 
statutes  making  the  failure  of  issue  definite  have  been  passed 
in  the  United  States  generally.1 

1  Failure  of  Issue  Made  Definite  by  Statute  in  England. — By 
1  Vict.  ch.  26,  §  39,  it  is  declared  (3  Jarm.  Wills,  App'x,  801): 
'"In  any  devise  or  bequest  of  real  or  personal  estate,  the  words, 
'die  without  issue,'  or  'die  without  leaving  issue,'  or  'have  no 
issue,'  or  any  other  words  which  may  import  either  a  want  or 
failure  of  issue  of  any  person  in  his  lifetime  or  at  the  time  of 
his  death,  or  an  indefinite  failure  of  his  issue,  shall  be  construed 
to  mean  a  want  or  failure  of  issue  in  the  lifetime  or  at  the  death 
of  such  person,  and  not  an  indefinite  failure  of  his  issue,  unless 
a  contrary  intention  shall  appear  by  the  will,  by  reason  of  such 
person  having  a  prior  estate  tail,  or  of  a  preceding  gift  being, 
without  any  implication  arising  from  such  words,  a  limitation 
of  an  estate  tail  to  such  person  or  issue,  or  otherwise";  with  a 
further  proviso  not  necessary  to  be  here  stated.  It  will  be  seen 
that  the  English  statute  does  not  alter  the  common  law  presump- 
tion of  an  indefinite  failure  of  issue,  when  the  person,  to  the 
failure  of  whose  issue  reference  is  made,  has  already  an  estate 
tail;  but  the  Virginia  statute,  set  out  above,  makes  no  such  ex- 
ception, for  the  reason,  no  doubt,  that  in  Virginia  the  prior  estate 
tail  is,  by  the  Act  of  1776,  immediately  converted  into  an  estate 
in  fee  simple.     See  Elys  v.  Wynne,  22  Grat.  224. 

As  to  the  effect  of  the  English  statute  on  the  implication  of 
estates  tail,  it  is  said  by  Jarman  (2  Jarm.  Wills,  143):  "No 
implication  of  an  estate  tail  can  arise  from  words  importing  a 
failure  of  issue  in  a  will  made  or  republished  since  the  year 
1837,  unless  an  intention  to  use  the  phrase  as  denoting  an  in- 
definite failure  of  issue  is  very  distinctly  marked,"  quoting  the 
statute  of  1  Vict.  ch.  26  above  cited.  He  then  goes  on  to  show 
that  in  a  devise  "To  A  and  his  heirs;  and  if  A  die  without  issue, 
to  B  and  his  heirs,"  A  will  take,  under  the  new  rule  of  construc- 
tion, an  estate  in  fee  simple,  subject  to  an  executory  devise  in 
favor  of  B,  in  the  event  of  A's  dying  without  leaving  issue  at 
his  death;  and  that,  by  a  will  since  1837,  in  a  devise  "To  A 
for  life,  and  if  A  die  without  issue,  to  B,"  A  will  take  an  estate 
for  life  only,  with  a  contingent  remainder  to  B,  to  take  effect  in 
the  event  of  A's  dying  without  issue  living  at  his  death.  But 
that  there  is  in  England  no  implication  of  a  remainder  in  favor 
of  the  issue  of  A  living  at  his  death,  if  such  there  be,  see  §  224, 
supra.  And  see,  also,  as  to  the  effect  of  the  English  statute, 
Wms.  R.  P.  (17th  ed.),  291;  Hawkins,  Wills   (2nd  Am.  ed.),  214. 


§§  225, 226]  EXECUTORY    INTERESTS.  273 

§  226.  Effect  of  Virginia  Statutes  on  Limitations  Contin- 
gent on  Dying  Without  Issue. — These  statutes  are:  (1)  Act 
of  October  7,  1776,  converting  a  fee  tail  into  a  "full  and 
absolute  fee  simple"  (9  Hen.  Stat.  226.  See  §  40,  supra) ; 
(2)  Act  taking  effect  January  1,  1820,  making  failure  of 
issue  definite  (see  §  225,  supra)  ;  and  (3)  Act  taking  effect 
January  1,  1820,  declaring  in  effect  that  any  limitation  that 
would  be  valid  after  an  original  fee  simple  shall  be  valid  after 
a  fee  tail  converted  into  a  fee  simple  (abolishing  the  doctrine 
of  Carter  v.  Tyler,  1  Call,  165).  See  Code  Va.  §§  2421-'22. 
Let  us  now  examine  the  following  limitations  at  common 
law  and  under  these  statutes.1 

1  Alteration  of  Law  Between  the  Execution  of  a  Will  and 
the  Death  of  the  Testator, — Upon  the  general  question,  see 
Bigelow  on  Wills  (Student's  Series),  278-'9,  where  it  is  said: 
"The  validity  of  the  execution  of  a  will  is  to  be  determined  by 
the  law  in  force  at  the  testator's  death.  A  statute  changing  the 
requirements  for  execution  is  not  open  to  the  objection  that  it 
operates  retrospectively,  because  the  execution  of  the  will  has  no 
force  until  the  death  of  the  testator.  Again,  if  a  statute  should 
alter  the  effect  of  the  dispositions  made  in  a  will,  and  the  testator 
should  allow  the  will  to  stand  unchanged,  it  would  be  presumed, 
in  England,  that  it  was  his  intention  that  the  will  should  operate 
according  to  the  change  in  the  lav/.  Hasluck  v.  Pedley,  L.  R.,  19 
Eq.  271.  But  in  some  of  our  States  it  is  held  that,  in  regard  to 
questions  of  property,  the  law  which  was  in  force  when  the  will 
was  executed  is  to  be  applied.  Both  views,  no  doubt,  stand  upon 
the  ground  of  supposed  intention  of  the  testator."  When  the  law 
as  it  is  at  the  death  of  the  testator  does  not  apply  (as  it  does 
not  by  express  provision  of  the  Wills  Act  of  1  Vict.  c.  26,  §  34), 
it  has  been  held  that  if  a  change  of  law  as  to  the  operation  of 
a  will  is  made  between  the  date  of  the  will  (i.  e.,  the  time  of 
writing  it)  and  its  actual  execution,  it  is  to  be  construed  accord- 
ing to  the  law  in  force  at  the  time  it  was  executed.  Randfield 
v.  Randfield,  8  H.  of  L.  Cas.  225;  29  Am.  &  Eng.  Ency  Law,  355, 
note. 

With  reference  to  the  Virginia  statutes,  referred  to  above,  the 
act  of  October  7,  1776,  abolishes  estates  tail  without  reference  to 
the  time  of  their  creation,  declaring  that  "every  person  who  now 
hath,  or  hereafter  may  have,  an  estate  in  fee  taille,  general  or 

18 


274  REAL    PROPERTY.  [Chap.  11 

§  227.  Devise  to  A  for  Life,  and  if  A  Die  without  Issue, 
Remainder  to  B  and  His  Heirs. 

(1).  In  Virginia,  before  October  7th,  1776.  Same  as  at 
common  law.  A  has  a  fee-tail  by  implication,  and  B  has 
a  vested  remainder  in  fee  simple.    See  §  222,  supra. 

(2).    From  October  7,  1776,  to  January  1,  1820.     A  has 

special,  in  any  lands,  .  .  .  whether  such  estate  taille  hath 
been  or  shall  be  created  by  deed,  will,  act  of  assembly,  or  by 
any  other  ways  or  means,  shall  from  henceforth,  or  from  the 
commencement  of  such  estate  taille,  stand  ipso  facto  seised 
.  .  .  of  such  lands  ...  in  full  and  absolute  fee  simple." 
9  Hen.  Stat.  226.     See  §  40,  supra. 

As  to  the  two  acts  going  into  effect  January  1,  1820  (the  one 
making  the  failure  of  issue  definite,  and  the  other  abolishing  the 
doctrine  of  Carter  v.  Tyler),  the  language  of  1  Rev.  Code  of  1819, 
chapter  99,  §§  25  and  26,  makes  it  clear  that  both  acts  are  appli- 
cable to  wills  made  before  January  1,  1820,  if  the  testator  died 
on  or  after  that  date.  By  §  25:  "Every  estate  in  lands  which 
shall  be  limited  by  any  deed  hereafter  made,  or  by  the  will  of 
any  person  who  shall  hereafter  die,  so  that,  as  the  law  was  on  the 
seventh  day  of  October,  in  the  year  of  our  Lord  one  thousand 
seven  hundred  and  seventy-six,  such  an  estate  would  have  been 
an  estate  tail,  shall  be  deemed  to  be  an  estate  in  fee  simple,  in 
the  same  manner  as  if  it  had  been  limited  by  those  technical 
words  which,  at  the  common-law,  are  appropriate  to  create  an  es- 
tate in  fee  simple;  and  every  limitation  upon  such  an  estate  shall 
be  held  valid  if  the  same  would  be  valid  ivhen  limited  upon  an 
estate  in  fee-simple,  created  by  technical  language  as  aforesaid." 
The  last  clause  of  §  25  abolishes  the  doctrine  of  Carter  v.  Tyler. 
Then  follows  §  26,  rendering  the  failure  of  issue  definite,  which 
begins  thus:  "Every  contingent  limitation  in  any  such  deed  or 
will,  made  to  depend  on  the  dying  of  any  person  without  heirs," 
etc.  (For  the  statute  as  it  now  stands  in  the  Code  of  1887,  § 
2422,  see  §  225,  supra.)  What  is  meant  by  "any  such  deed  or 
will?"  Referring  to  §  25,  it  is  plain  that  it  means,  "any  deed 
hereafter  made,  or  the  ivill  of  any  person  toho  shall  hereafter  die," 
thus  making  the  new  law  applicable  if  the  testator  died  after  the 
statute  went  into  operation,  regardless  of  the  time  of  the  execu- 
tion of  the  will. 

With  regard  to  the  Virginia  Wills  Act  taking  effect  July  1,  1850, 
it  is  expressly  provided  by  §  22  of  ch.  122  of  the  Code  of  1849, 
that,  "The  preceding  sections  of  this  chapter  shall  not  extend  to 


§  227]  EXECUTORY    INTERESTS.  275 

a  fee  simple,  the  act  of  1776  converting  the  implied  fee- 
tail  into  a  "full  and  absolute"  fee  simple.  Then  B's  estate 
cannot  be  a  remainder,  because  no  remainder  can  follow  a 
fee  simple.  Neither  is  it  allowed  to  be  an  executory  devise, 
by  the  doctrine  of  Carter  v.  Tyler  (as  to  which,  see  below)  ; 
and,  if  it  could  be  allowed  to  be  an  executory  devise,  it  -would 
violate  the  rule  against  perpetuities,  because  it  is  to  take 
effect  after  an  indefinite  failure  of  issue.  So  A  takes  the  fee 
simple,  and  B  takes  nothing.    Tate  v.  Tally,  3  Call,  354. 

N.  B.  The  doctrine  in  Virginia  of  Carter  v.  Tyler,  as  it 
is  called,  is  the  doctrine  which  declares  that  in  no  case  can 
an  executory  devise  follow  a  fee  tail  raised  to  a  fee  simple 
by  the  statute  of  1776  abolishing  estates  tail,  and  convert- 
ing them  into  estates  in  fee  simple.  For  this  doctrine  two 
reasons  are  given,  namely:  (1)  That  before  the  statute 
operated  on  the  fee  tail,  there  was  a  moment  of  time  when 
the  limitation  over  after  the  fee  tail  was  a  remainder;  and 
this  remainder  could  not  turn  into  an  executory  devise  by 
matter  ex  post  facto,  for  the  maxim  is,  "Once  a  remainder, 
always  a  remainder"  (see  §  214,  supra) ;  and  (2)  That 
when  the  statute  of  1776  declared  that  every  estate  tail 
should  become  a  "full  and  absolute  fee  simple,"  it  neces- 
sarily avoided  an  executory  devise  after  a  fee  tail  so  con- 
verted ;  for  the  effect  of  an  executory  devise  after  a  fee  simple 
is  to  make  the  fee  defeasible  on  the  happening  of  the 
event  on  which  the  executory  devise  depends;  and  this  is  in- 
consistent with  a  full  and  absolute  fee  simple  in  the  first  taker. 
Carter  v.  Tyler,  1  Call  165;  McClintic  v.  Manns,  4  Munf. 

any  will  made  before  this  act  is  in  force;  but  the  validity  and 
effect  of  such  will  shall  be  determined  by  the  laws  in  force  on 
the  day  before  this  chapter  takes  effect,  in  like  manner  as  if 
these  laws,  so  far  as  they  relate  to  the  subject,  were  herein 
enacted  in  place  of  such  sections.  Every  will  re-executed  or  re- 
published or  revived  by  any  codicil  shall,  for  the  purposes  of 
this  chapter,  be  deemed  to  have  been  made  at  the  time  at  which 
the  same  shall  be  so  re-executed,  republished,  or  revived."  And 
see  Code  of  1887,  §  2532.     Also  Raines  v.  Barker,  13  Grat.  128. 


276  REAL    PROPERTY.  [Chap.  11 

328;  Ball  v.  Payne,  6  Band.  73;  Bramble  v.  Billups,  4  Leigh 
(90) ;  Callis  v.  Kemp,  11  Grat.  78.  See  Moore  v.  Brools,  12 
Grat.  135. 

(3).  From  January  1,  1820,  to  the  present  time.  A  has 
a  life  estate  not  enlarged  to  a  fee-tail,  because  failure  of  issue 
is  made  definite  by  the  act  of  January  1,  1820.  And  there 
are  tioo  remainders  in  fee  upon  a  contingency  with  a  double 
aspect,  both  of  which  remain  contingent  until  the  death  of 
A,  the  one  to  the  issue  of  A  living  at  his  death,  or  born  to 
him  within  ten  months  thereafter,  and  the  other  to  B.  On 
A's  death,  if  there  is  issue  of  A  then  living,  etc.,  the  first 
remainder  vests  in  such  issue,  and  the  second  is  defeated; 
but  if  there  is  no  issue  of  A,  living  at  his  death,  etc.,  then 
the  second  remainder,  to  B,  takes  effect.  See  §  224,  supra. 
The  form  of  the  limitation  under  the  statute  is,  in  effect, 
"To  A  for  life;  and  if  A  die  without  issue  living  at  his 
death,  or  born  to  him  within  ten  months  thereafter,  then  to 
B  and  his  heirs."  Jiggetts  v.  Davis,  1  Leigh  (Va.)  419; 
Wine  v.  Marhwood,  31  Grat.  43,  51;  Sutherland  v.  Sydnor, 
84  Va.  880.    See  Warners  v.  Mason,  5  Munf.  (Va.)  242. 

§  228.  Effect  of  Definite  Failure  of  Issue  on  Rule  in  Shel- 
ley's Case. — View  of  Professor  Minor. — It  will  be  remembered 
that  in  the  above  limitation,  "To  A  for  life,  and  if  A  die  with- 
out issue,  remainder  to  B  and  his  heirs,"  A  takes  at  common 
law  a  fee-tail  by  the  implication  of  a  remainder  to  the  issue 
of  A,  following  A's  express  life  estate,  and  the  consequent 
operation  of  the  Eule  in  Shelley's  Case.  For  at  common  law 
the  failure  of  A's  issue  is  indefinite,  and  the  word  "issue" 
therefore  embraces  the  whole  line  of  A's  issue,  his  whole  in- 
heritable blood,  and  "takes  in  all  issues  to  the  utmost  of  the 
family,  as  far  as  heirs  of  the  body  would  do.  It  is  therefore  a 
word  of  limitation  and  not  of  purchase.  3  Jarm.  Wills,  200 ; 
Roddy  v.  Fitzgerald,  6  H.  of  L.  Cas.  882.  But  by  the  Vir- 
ginia statute  of  1820,  the  failure  of  issue  is  made  definite,  and 
the  remainder  implied  in  favor  of  the  issue  of  A  is  confined 
to  issue  living  at  the  time  of  his  death,  or  born  to  him  within 


§§  227, 228]      EXECUTORY  INTERESTS.  277 

ten  months  thereafter;  and  this  prescription  of  a  definite  time 
makes  such  issue  a  particular  class  as  of  that  time,  and  the 
word  "issue"  becomes  descriptio  personarum  and  a  word  of 
purchase,  instead  of  no  men  collectivum  and  a  word  of  limi- 
tation. Hence  the  Eule  in  Shelley's  Case  has  no  application, 
and  cannot  operate  to  enlarge  the  estate  of  A,  which  remains 
as  previously  limited.1  See  Lethieullier  v.  Tracy,  3  Atk.  784, 
796;  Smith  v.  Chapman,  1  H.  &  M.  (Va.)  240,  292,  298; 
Jiggetts  v.  Davis,  1  Leigh  (368),  (418)  ;  Nowlin  v.  Winfree, 
8  Grat.  346,  348 ;  Tinsley  v.  Jones,  13  Id.  289,  296 ;  Cooper 
v.  Hepburn,  15  Id.  551;  Moon  v.  Stone,  19  Id.  130,  232,  245; 
Daniel  v.  Whartenby,  17  Wall.  639;  Va.  Law  Journal,  April, 
1880,  article  entitled,  '"Dying  Without  Issue  Under  Virginia 
Statutes";  Va.  Law  Journal,  October,  1883,  article  entitled, 
"The  Effect  of  a  Definite  Failure  of  Issue  on  the  Operation 
of  the  Eule  in  Shelley's  Case."  See,  however,  2  Min.  Ins. 
453-457  (3rd  ed.),  458-462  (4th  ed.),  where  it  is  contended 
that  the  statute  of  1820,  making  the  failure  of  issue  definite, 
had  no  effect  upon  the  implication  of  an  estate  tail;  so  that 
A's  life  estate  is  first  raised  to  a  fee  tail,  and  then  by  the 
statute  of  1776  is  converted  into  a  fee  simple,  after  which 
the  fee  simple  to  B  is  good  as  an  executory  devise;  and  that 

1  The  doctrines  that  estates  tail  continue  to  be  created  "as  the 
law  was  aforetime,"  i.  e.,  on  October  7,  1776,  can  have  no  applica- 
tion in  this  connection,  because  the  statute  of  1819  makes  "die 
without  issue,"  wherever  it  occurs,  equal  to  "die  without  issue 
living  at  his  death,"  etc.;  and  this  limitation,  as  the  law  was 
aforetime,  did  not  create  an  estate  tail.  For  the  extent  of  the 
doctrine  referred  to,  see  Carter  v.  Tyler,  1  Call,  165;  Hill  v.  Bur- 
row, 3  Id.  342;  Tate  v.  Tally,  lb.  354;  Tidball  v.  Lupton,  1  Rand. 
194;  Goodrich  v.  Harding,  3  Id.  280;  Bells  v.  Gillespie,  5  Id.  273; 
Ball  v.  Payne,  6  Id.  73;  Jiggetts  v.  Davis,  1  Leigh  (368)  ;  Bramble 
v.  Billups,  4  Id.  (90);  Thomason  v.  Andersons,  lb.  (115);  See  v. 
Craigen,  8  Id.  449;  Tinsley  v.  Jones,  13  Grat.  289.  For  a  correct 
statement  of  the  results  of  these  cases,  the  reader  is  referred  to 
3  Lorn.  Dig.  (211).  For  a  clear  explanation  of  the  effect  of  the 
act  of  1785,  see  opinion  of  Moncure,  P.,  in  Tinsley  v.  Jones,  13 
Grat.  296-'97. 


278  REAL    PROPERTY.  [Chap.  11 

this  continued  to  be  the  law  of  Virginia  until  the  statute  of 
July  1,  1850,  abolishing  the  Eule  in  Shelley's  Case,  after 
which  A  takes  a  life  estate,  followed  by  a  contingency  with 
a  double  aspect,  as  is  explained  above.  But  this  doctrine  of 
Professor  Minor,  as  to  the  effect  of  the  statute  of  1820, 
is  not  sustained  by  authority,  and  is  believed  to  be  unsound 
in  principle.1 

1  The  Importance  of  the  Consequences  which  Flow  from  the 
Opposing  Views. — When  the  form  of  limitation  is  "To  A  and  his 
heirs,  and  if  he  die  without  issue,  to  B,"  it  can  make  no  differ- 
ence, since  the  legislation  of  1819,  abolishing  the  doctrine  of 
Carter  v.  Tyler,  and  removing  the  objection  of  remoteness  as  to 
B's  estate,  whether  A  be  considered  to  have  a  fee  simple  by  orig- 
inal limitation,  or  a  fee  simple  by  first  reducing  the  fee  to  a  fee 
tail,  by  implication,  and  then  restoring  it  to  the  dignity  of  a  fee 
by  virtue  of  the  statute  of  1776.  Corr  v.  Porter,  33  Grat.  278.  But 
it  is  far  otherwise  when  the  form  of  the  limitation  is,  "To  A  for 
life,  and  if  he  die  without  issue,  to  B."  For  here,  if  A's  life  es-. 
tate  is  enlarged,  by  implication,  to  a  fee  tail,  and  then  made  a 
fee  by  the  statute,  then  if  A  die  without  issue  living  at  his  death, 
etc.,  the  fee  will  shift  to  B,  subject  to  a  right  of  dower  in  favor 
of  the  widow  of  A;  or,  if  A  were  a  female,  her  husband  would 
have  curtesy,  other  requisites  being  present.  Jones  v.  Hughes, 
27  Grat.  560;  Medley  v.  Medley,  lb.  568;  Corr  v.  Porter,  supra. 
But,  of  course,  if  A's  estate  remains  for  life  only,  there  will  be 
neither  dower  nor  curtesy. 

Again,  while  it  is  true  that  if  there  be  no  issue  of  A  living  at 
his  death,  etc.,  the  land  will  go  over  to  B,  whether  A  be  consid- 
ered to  have  a  life  estate  or  a  fee  simple;  yet  the  consequences, 
when  there  is  issue  of  A,  are  by  no  means  the  same  in  the  two 
cases.  For  if  A  have  the  fee,  subject  only  to  go  over  to  B  on 
the  happening  of  the  contingency,  then  when  the  contingency 
does  not  happen,  A  has  an  absolute  fee,  with  which  he  can  do 
what  he  wills.  But  if  there  be  issue  of  A,  when  A  has  a  life  es- 
tate only,  such  issue,  living  at  his  death,  etc.,  are  entitled  to  the 
estate  as  purchasers,  and  their  interest  can  in  no  wise  be  af- 
fected by  any  act  of  A's.    Wine  v.  Markwood,  31  Grat.  50. 

It  may  be  remarked  that  the  question  which  has  been  discussed 
may  yet  arise  upon  wills  subject  to  the  law  as  it  was  prior  to 
July  1,  1850.  For  until  the  death  of  the  tenant  for  life,  when  the 
contingency  of  dying  without  issue  living  at  his  death,  etc.,  is 
decided,  the  statute  of  limitation  does  not  begin  to  run;  and  as 


§§228,229]  EXECUTORY    INTERESTS.  279 

§  229.  Devise  to  A  and  His  Heirs,  and  if  A  Dies  Without 
Issue,  Remainder  to  B  and  His  Heirs. 

(1).  In  Virginia  before  October  7,  1776.  Same  as  at 
common  law.  A  has  a  fee-tail,  by  implication,  and  B  has  a 
vested  remainder.    See  §  223,  supra. 

(2).  From  October  7,  1776,  to  January  1,  1820.  A  has 
a  "full  and  absolute"  fee  simple  by  the  effect  of  the  statute 
of  1776  on  the  estate  tail  created  by  implication.  B's  estate 
is  void  as  a  remainder,  since  no  remainder  can  follow  a  fee 
simple;  and  as  an  executory  devise  it  cannot  be  allowed 
because  of  the  doctrine  of  Carter  v.  Tyler;  and  besides  it 
would  violate  the  Eule  against  Perpetuities  because  of  the 
indefinite  failure  of  issue.  Hill  v.  Burrow.  3  Call,  342; 
Eldridge  v.  Fisher,  1  H.  &  M.  559;  Sydnor  v.  Sydnors,  2 
Muni  263;  Bells  v.  Gillespie,  5  Eand.  273;  Broaddus  v. 
Turner,  5  Id.  308;  Tinsley  v.  Jones,  13  Grat.  289;  See  v. 
Craigen,  8  Leigh,  149. 

(3).  From  January  1,  1820,  to  the  present  time.  A  has 
a  fee  simple,  and  B  has  a  good  executory  devise  of  a  fee 
after  a  fee.  A's  fee  simple  is  by  the  original  limitation  to 
him  and  his  heirs,  and  not  by  the  effect  of  the  statute  of 
1776  on  an  estate  tail.  For  as  the  failure  of  issue  is  now 
definite,  no  estate  tail  can  be  raised  by  implication;  and 
the  fee  simple  to  A  remains  a  fee  simple.  And  the  execu- 
tory devise  to  B  does  not  violate  the  Eule  against  Perpe- 
tuities, because  the  failure  of  issue  is  definite,  and  B  is  to 
take  if  A  has  no  issue  living  at  his  death,  or  born  within 
ten  months  thereafter.  See  Corr  v.  Porter,  33  Grat.  278; 
Randolph  v.  Wright,  81  Va.  608;  Pettyjohn  v.  Woodroof, 
77  Va.  507;  Tomlinson  v.  Nickell,  24  W.  Va.  148. 

N.   B. — It  should  be  observed  that  if  in  a  devise  since 

the  first  taker  may  be  an  infant  at  the  death  of  the  testator, 
litigation  may  be  thus  postponed  for  many  years.  In  the  case  of 
Pettyjohn  v.  Woodroof,  77  Va.  507,  the  testator  died  in  1822,  but 
as  the  first  taker  lived  until  1875,  a  suit  commenced  in  1877  was 
in  time. 


2S0  REAL    PROPERTY.  [Chap.  11 

January  1,  1820,  the  form  of  limitation  is,  "To  A,  and  if  A 
die  without  issue,  to  B  and  his  heirs,"  this  is  in  effect,  "To 
A  and  his  heirs  (see  §  36,  supra),  and  if  A  die  without 
issue,  to  B  and  his  heirs."  See  Tinsley  v.  Jones,  13  Grat. 
289,  297;  Jones  v.  Hughes,  27  Grat,  560;  Medley  v.  Medley, 
lb.  568;  Wine  v.  Marhwood,  31  Grat.  43.  And  the  law  is  the 
same  now  in  England  since  1837.    2  Jarm.  Wills.  144. 

§  230.  Devise  to  A  and  the  Heirs  of  His  Body;  and  if  A 
Die  Without  Issue,  then  to  B  and  His  Heirs. 

(1).  In  Virginia  before  October  7,  1776.  A  has  a  fee 
tail  by  express  limitation;  B  has  a  vested  remainder,  to 
take  effect  whenever  the  issue  of  A  fails,  whether  at  A's 
death  or  at  any  subsequent  time.    Gray,  Perp's,  §  111. 

(2).  From  October  7,  1776,  to  January  1,  1820.  A  has  a 
"full  and  absolute"  fee  simple  by  the  operation  of  the  stat- 
ute of  1776  upon  the  express  fee  tail.  B  takes  nothing. 
The  limitation  over  to  B  cannot  be  good  as  a  remainder, 
for  it  follows  the  fee  simple  to  A;  and  as  an  executory 
devise,  it  is  void  by  the  doctrine  of  Carter  v.  Tyler,  and 
also  because  it  would  violate  the  Eule  against  Perpetuities, 
being  limited  to  take  effect  after  an  indefinite  failure  of 
issue.  Hunter  v.  Haynes,  1  Wash.  (Va)  292;  Tidball  v. 
Lupton,  1  Band.  194. 

(3).  From  January  1,  1820,  to  the  present  time.  A  has  a 
fee  simple  by  the  operation  of  the  statute  of  1776  upon  his 
express  fee  tail;  B  has  a  good  executory  devise  of  a  fee  on 
a  fee,  the  doctrine  of  Carter  v.  Tyler  having  been  abolished 
in  1820,  and  the  failure  of  issue  made  definite.  It  is, 
therefore,  allowed  to  be  an  executory  devise;  and,  as  such, 
it  does  not  violate  the  Bule  against  Perpetuities. 

N.  B. — When  a  devise  is  "To  A  and  the  heirs  of  his 
body,"  or  "To  A  and  his  issue,"  with  a  limitation  over  after 
a  definite  failure  of  issue  ("if  A  die  without  issue  living  at 
his  death/'  e.  g.).  the  only  effect  of  the  definite  failure  of 
issue  is  to  make  the  limitation  over  contingent  upon  such 
failure;  and  the  words  "if  he  die  without  issue  living  at  his 


§§229-231]  EXECUTORY    INTERESTS.  281 

death/'  etc.,  are  not  considered  explanatory  of  the  species 
of  issue  included  in  the  prior  devise,  and,  therefore,  do 
not  prevent  the  prior  devisee  from  taking  an  estate  tail 
under  it.  3  Jarm.  Wills  239;  Elhjs  v.  Wynne,  22  Grat.  224; 
Atkinson  V.  McCorrnicle,  76  Ya.  791;  Stokes  v.  Van  WycJc, 
83  Va.  724.  But  while  a  definite  failure  of  issue  does  not 
affect  an  express  estate  tail  previously  limited,  it  prevents 
the  implication  of  an  estate  tail,  when  the  previous  estate 
is  for  life  or  in  fee  simple;  for  the  words  "issue  living  at 
his  death,"  etc.,  are  either  words  of  purchase  or  of  contin- 
gency, and  not  words  of  limitation;  and  only  words  of 
limitation  can  enlarge  or  reduce  the  express  estate  previ- 
ously limited.     See  §  224,  supra. 

§  231.  Devise  to  A  and  the  Heirs  of  His  Body;  and  if  A 
Die  Without  Issue  Living  at  His  Death,  then  to  B  and  His 
Heirs. 

(1).  In  Virginia  before  October  7,  1776.  A  has  a  fee 
tail  by  express  limitation,  and  B  a  contingent  remainder 
under  Fearne's  First  Class,  by  reason  of  the  contingent  de- 
termination of  A's  estate  tail.  For  the  testator  has  made 
the  failure  of  A's  issue  definite,  so  that  the  words  "if  A 
die  without  issue  living  at  his  death"  are  words  of  contin- 
gency; and  B  is  to  take  only  if  no  issue  be  living  at  A's 
death,  and  not  on  the  subsequent  failure  of  A's  issue. 

(2).  From  October  7,  1776,  to  January  1,  1820.  A's  ex- 
press fee  tail  is  converted  into  a  "full  and  absolute  fee 
simple,"  as  we  have  seen,  after  which-  no  executory  devise 
can  follow,  by  the  doctrine  of  Carter  v.  Tyler.  B's  estate 
cannot  be  a  remainder  after  the  fee  simple;  and  as  Carter 
V.  Tyler  does  not  allow  it  to  be  an  executory  devise,  it  is 
void.  This  was  the  form  of  limitation  in  Carter  v.  Tyler, 
1  Call,  165.     See  Broaddus  v.  Turner,  5  Band.  317. 

(3).  From  January  1,  1820,  to  the  present  time.  A  has 
a  fee  simple,  and  B  has  a  good  executory  devise,  the  doc- 
trine of  Carter  v.  Tyler  having  been  abolished  January  1, 
1820.     See  §   226,  supra.     B's  executory  devise  is  not  too 


282  REAL    PROPERTY.    "  [Chap.  11 

remote,  as  it  must  take  effect,  if  ever,  at  the  death  of  A 
having  no  issue  then  living.1 

§  232.  Executory  Limitations  Before  and  After  January 
1,  1820. — It  is  manifest  that  January  1,  1820,  is  an  epoch  in 
the  history  of  executory  limitations  in  Virginia  depending 
on  dying  without  issue.  Before  that  date,  either  the  indefinite 
failure  of  issue  or  the  doctrine  of  Carter  v.  Tyler  made  the 
limitation  over  void;  but  when,  by  the  act  of  1820,  the  failure 
of  issue  became  definite,  and  the  doctrine  of  Carter  v.  Tyler 

1  Carter  v.  Tyler. — As  to  the  doctrine  of  Carter  v.  Tyler,  it  may 
be  observed  that  it  applied  to  every  case  where  the  first  estate 
was  an  estate  tail,  rendering  the  limitation  over  void  after  such 
estate  tail  converted  by  the  act  of  October  7,  1776,  into  a  fee 
simple.  It  follows  that  although  estates  tail  ceased  to  be  raised 
by  implication  in  Virginia  after  the  act  of  1819,  taking  effect 
January  1,  1820,  changing  the  meaning  of  "dying  without  issue" 
from  an  indefinite  to  a  definite  failure  of  issue,  yet  the  doctrine 
of  Carter  v.  Tyler,  if  it  had  not  been  abolished,  would  have  still 
applied  where  the  first  taker  had  an  estate  tail,  by  express  limita- 
tion, not  dependent  on  the  effect  of  the  words  "dying  without 
issue."  Carter  v.  Tyler  was  itself  a  case  of  this  kind,  the  devise 
being,  "To  W.  C.  and  Ms  heirs  lawfully  begotten,"  which  words 
of  themselves  created  an  estate  tail.  See  3  Jarm.  Wills,  91,  and 
cases  cited,  and  Broaddus  v.  Turner,  5  Rand.  317,  opinion  of 
Coalter,  J.  Judge  Carr,  however,  thought  these  words  gave  a  fee 
simple  to  W.  C,  which  was  reduced  to  a  fee  tail  by  the  limitation 
over  after  an  indefinite  failure  of  issue.  See  his  opinion  in  Bells 
v.  Gillesjrie,  5  Rand.  280-82,  and  in  Broaddus  v.  Turner,  lb.  309. 
It  seems,  however,  that  Judge  Carr  was  mistaken  in  supposing 
that  the  words,  "To  W.  C.  and  his  heirs  lawfully  begotten,"  in 
the  devise  in  Carter  v.  Tyler,  gave  W.  C.  the  fee  simple  by  express 
limitation.  And  as  to  the  failure  of  issue  in  that  case,  while  there 
was  no  decision  on  that  point  by  the  court,  yet  it  was  assumed 
by  counsel  on  both  sides  to  be  definite,  as  otherwise  the  limita- 
tion over  would  have  been  clearly  void  for  remoteness,  without 
reference  to  the  questions  discussed  by  counsel  and  decided  by 
the  court. 

In  Elys  v.  Wynne,  22  Grat.  224  (see  §  232,  infra),  the  limita- 
tion in  the  will  of  a  testator  who  died  in  1833  was,  "To  D  and 
the  heirs  of  her  body,  but  if  she  die  without  such  heir,  then 
over."    Here  there  was  an  estate  tail  created  by  express  words, 


§§231,232]  EXECUTORY    INTERESTS.  283 

was  abolished,  such  executory  limitations  became  valid,  and 
have  greatly  flourished  ever  since.  A  good  example  of  the 
effect  of  the  acts  of  1820  is  furnished  by  the  case  of  Elys 
v.  Wynne,  22  Grat.  224.  (See  §  231,  supra,  note.)  In  1833 
the  testator  made  his  will  and  died.  He  devised  land  to  D 
and  the  heirs  of  her  body;  but  should  D  die  without  heir  as 
above  mentioned,  then  the  land  to  be  sold,  and  the  money 
equally  divided  among  all  his  heirs.  Held,  D  took  a  fee  sim- 
ple in  the  land  defeasible  on  her  without  such  heir  living  at 
her  death  or  born  to  her  within  ten  months  thereafter,  in 
which  case  the  other  heirs  of  the  testator  would  take.  Had 
the  devise  been  subject  to  the  law  before  1820,  the  limitation 
over  would  have  been  void.  For  Tabular  View,  see  infra, 
p.  281. 

converted  by  the  statute  of  1776  into  a  fee  simple;  and  a  limita- 
tion over  after  a  definite  failure  of  issue.  But  this  limitation 
would  have  been  rendered  void  by  the  doctrine  of  Carter  v.  Tyler, 
had  that  doctrine  continued  in  force.  It  was  not  enough,  there- 
fore, by  the  legislation  of  1819,  to  make  the  failure  of  issue 
definite,  as  this  only  made  good  the  limitation  over  after  what 
would  otherwise  have  been  an  estate  tail  by  implication;  but  it 
was  also  necessary  to  declare,  as  was  done  by  the  other  statute 
of  1819,  that  any  limitation  which  would  be  good  after  a  fee 
simple  originally  limited  should  be  good  after  any  fee  tail  con- 
verted by  the  act  of  1776  into  a  fee  simple,  thus  effectually  abol- 
ishing the  doctrine  of  Carter  v.  Tyler. 

It  may  be  remarked  that  when  the  first  taker  is  a  woman  (see 
Elys  v.  Wynne,  supra),  in  order  that  there  may  be  issue  born  to 
her  after  her  death,  it  is  necessary  to  suppose  (if  indeed  the 
Csesarean  operation  be  not  performed)  that  she  had  a  son  who 
married  and  died  in  her  lifetime,  leaving  his  wife  enceinte  of  a 
child,  whose  birth  takes  place  after  the  death  of  the  first  taker, 
its  grandmother.  Such  a  case  is  put  by  Judge  Carr  in  Thomason 
v.  Andersons,  4  Leigh  (125). 


284 


REAL    PROPERTY. 


[Chap.  11 


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§233]  EXECUTORY    INTERESTS.  285 

§  233.  Executory  Interests  in  Personalty. — In  2  Jarrnan, 
Wills  (5th  Am.  ed.),  501,  it  is  said:  "No  remainders  can 
be  limited  in  real  and  personal  chattels ;  every  future  bequest 
of  which,  therefore,  whether  preceded  by  a  partial  gift  or  not, 
is,  in  its  nature,  executory."  The  reason  is,  that  the  common 
law  doctrine  as  to  estates  in  land  was  held  inapplicable  to 
chattels,  in  which  the  law  recognized  nothing  but  absolute 
ownership;  so  that  a  gift  to  A  of  a  chattel,  real  or  personal, 
vested  in  A  the  entire  interest ;  and  the  result  was  the  same  if 
the  gift  was  to  A  for  life,  or  otherwise.  In  each  case  A,  at  law, 
was  the  absolute  owner;  there  was  no  reversion  in  the  donor, 
and  a  remainder  over  to  a  third  person  was  void — just  as 
in  land  there  can  be  no  remainder  after  a  feoffment  in  fee 
simple.  See  Fearne,  Remainders,  (3),  n.  (c) ;  also  (401) ; 
2  Bl.  Com.  (174);  Wms.  Eeal  Prop.  (6th  Am.  ed.),  291; 
Wms.  Pers.  Prop.  (1th  Am.  ed.)  (7),  (259);  Gray,  Per- 
petuities, §  117;  2  Min.  Ins.  (1th  ed.),  433;  20  Am.  &  Eng. 
Ency.  Law,  908,  930. 

In  his  definition  of  an  executory  devise,  Fearne  (p.  385) 
includes  a  future  estate  in  personalty  (though  stating  that 
it  is  more  properly  an  executory  bequest),  and  declares  it 
to  be  "such  a  future  estate  in  lands  or  chattels  ...  as 
the  law  admits  in  the  case  of  a  will,  though  contrary  to 
the  rules  of  limitation  in  conveyances  at  common  law." 
(See  §  206,  supra.)  And  on  page  (401)  he  says:  The  third 
sort  of  executory  devises,  comprising  all  that  relate  to 
chattels,  is  where  a  term  for  years,  or  any  personal  estate, 
is  devised  (more  properly,  bequeathed)  to  the  one  for  life,  or 
otherwise;  and  after  the  decease  of  the  devisee  or  legatee 
for  life,  or  some  other  contingency  or  period,  is  given  over 
to  some  one  else.  Such  ulterior  limitation  was  void  at 
common  law,  and  the  whole  property  vested  in  the  person 
to  whom  it  was  limited  for  life;  though  there  was,  indeed, 
a  distinction  taken  between  a  devise  (or  rather,  bequest) 
of  the  use  of  a  personal  thing  and  of  the  thing  itself.  Thus 
where  the  will  was  that  A  should  use  such  a  thing  during 


2S6  REAL    PROPERTY.  [Chap.  11 

his  life,  and  afterwards  that  B  should  have  it,  the  limita- 
tion over  was  agreed  to  be  good;  but  if  the  first  disposi- 
tion had  been  of  the  thing  itself  to  one  for  life,  and  after 
to  another,  then  the  devise  over  would  have  been  void. 
But  the  doctrine  has  gradually  obtained,  and  is  now  settled, 
that  such  limitations  over  in  a  will,  or  by  way  of  trust,  are 
good."  For  an  example  of  a  future  estate  in  personalty  by 
will,  see  Pettyjohn  v.  Woodroof,  77  Va.  507.  But  there  can 
be  no  future  estate  in  chattels  which  are  consumed  in  the 
using — quce  ipso  usu  consumuniur,  as  wines,  etc.  See  Wms. 
Pers.  Prop.,  262;  2  Min.  Ins.  434;  Dunbar  v.  Woodcoch, 
10  Leigh,  628. 

It  will  be  noticed  that  Fearne  does  not  say  that  a  future 
interest  in  chattels  may  be  created  by  way  of  use,  but  by 
way  of  trust.  The  reason  is  that  the  statute  of  uses  has 
no  application  to  personal  property.  2  Bl.  Com.  (336) ; 
Gray,  Perpetuities,  §  73,  §  79 ;  20  Am.  &  Eng.  Ency.  Law, 
933;  §  114,  supra.  Nor  does  Pearne  state  that  a  future 
interest  in  chattels  can  be  created  by  deed  otherwise  than 
by  way  of  trust.  And  this  is  in  conformity  with  the  law  as 
it  is  still  held  in  England.  Wms.  K.  P.  (6th  Am.  ed.),  292; 
Wms.  Pers,  Prop.  (4th  Am.  ed.),  261;  Gray,  Perpetuities, 
§§  76,  78;  20  Am.  &  Eng.  Ency.  Law,  934.  But  in  the 
United  States  it  is  said  that  "the  weight  of  authority  sus- 
tains the  position  that  future  limitations  of  chattels,  real 
or  personal,  may  be  created  by  deed  as  well  as  by  will, 
without  the  intervention  of  trustees;  and  that  under  such 
limitations  both  the  life  legatee  and  the  ulterior  legatee 
take  legal,  as  distinguished  from  equitable,  interests."  20 
Am.  &  Eng.  Ency.  Law,  934.  And  see  Carney  v.  Kain, 
(W.  Va.),  23  S.  E.  650,  656;  2  Min.  Ins.  (4th  ed.),  433-'34. 
For  full  discussion,  see  Gray,  Perpetuities,  §§  71-98,  where 
the  conclusion  is  reached  that  in  the  United  States,  with 
the  exception  of  North  Carolina,  legal  future  estates  in  per- 
sonalty can  be  created  by  deed  inter  vivos.1 

1  Future  Estates  an  Personalty. — In  Wms.  Pers.  Prop.   (267), 


§§233,234]  EXECUTORY    INTERESTS.  287 

§  234.    Executory  Interests  Under  Virginia  Statutes — The 
policy  in  Virginia  is  to  allow  the  same  limitations  directly 

it  is  said:  "As  no  estates  can  subsist  in  personal  property,  it  fol- 
lows that  the  rules  on  which  contingent  remainders  in  freehold 
lands  depend  for  their  existence  have  never  had  any  application 
to  contingent  dispositions  of  personal  property.  Such  dispositions 
partake  rather  of  the  indestructible  nature  of  the  executory  de- 
vises and  shifting  uses.  ...  If,  therefore,  a  gift  be  made  of 
personal  property  to  trustees,  in  trust  for  A  for  his  life,  and, 
after  his  decease,  in  trust  for  such  son  of  A  as  shall  first  attain 
the  age  of  twenty-one  years;  or  if  a  term  of  years  be  bequeathed 
to  A  for  his  life,  and  after  his  decease,  to  such  son  of  A  as  shall 
first  attain  the  age  of  twenty-one  years;  it  will  be  immaterial 
whether  or  not  the  son  attain  the  age  of  twenty-one  in  the  life- 
time of  his  father.  On  his  attaining  that  age,  he  will  become  en- 
titled quite  independently  of  bis  father's  interest.  His  ownership 
will  spring  up,  as  it  were,  on  the  given  event  of  his  attaining  the 
age.  But  as  the  indestructible  nature  of  these  future  dispositions 
of  personal  estate  might  lead  to  trusts  of  indefinite  duration,  the 
rule  of  perpetuities,  which  confines  executory  interests  [i.  e.,  the 
arising  of  such  interests]  within  a  life  or  lives  in  being,  and 
twenty-one  years  afterwards,  with  a  further  allowance  for  the 
time  of  gestation,  should  it  exist,  applies  equally  to  personal  as 
to  real  estate."'  And  see,  as  to  the  application  of  the  rule  against 
perpetuities  to  future  estates  in  chattels.  Gray,  Perpetuities, 
§  117;  also  §§  319-321. 

It  may  be  further  remarked,  with  reference  to  limitations  of 
personalty,  that  there  are  no  estates-tail  in  chattels,  whether  per- 
sonal or  real;  and  the  words  which  create  an  estate-tail  in  land, 
whether  expressly  or  by  implication,  confer  the  whole  interest  in 
personalty;  i.  e.,  an  interest  corresponding  to  a  fee  simple  estate 
in  realty.  Fearne,  Remainders  (463);  Wms.  Pers.  Prop.  (264); 
3  Jarm.  Wills,  374.  Hence,  a  gift  of  personalty  to  A  and  the 
heirs  of  his  body,  followed  by  a  limitation  over  to  B,  on  the  in- 
definite failure  of  the  issue  of  A,  gives  A  the  whole  interest,  and 
the  limitation  over  to  B,  is  void  as  violating  the  rule  against 
perpetuities;  whereas,  in  the  same'  case,  as  to  realty,  A  would 
have  a  fee  tail,  and  B  a  vested  remainder.  But  in  a  gift  of  per- 
sonalty, "To  A  and  the  heirs  of  his  body,  and  if  A  die  without 
issue  living  at  his  death  (or  other  words,  which  make  the  failure 
of  the  issue  definite),  then  to  B,"  the  limitation  to  B  is  good,  as  it 
cannot  violate  the  rule  against  perpetuities.    See  Fearne   (470), 


288  REAL    PROPERTY.  [Chap.  11 

by  deed  which  were  formerly  good  only  by  way  of  executory 
use  or  executory  devise.     See  §§  210-'12,  supra. 

(1).  Statute  taking  effect  January  1,  1820:  "Any  estate 
may  be  made  to  commence  in  futuro  by  deed  in  like  man- 
ner as  by  will."  1  Rev.  Code  of  1819,  ch.  99,  §  28;  Code 
of  1887,  §  2418.  So  by  any  deed  in  Virginia  a  freehold 
can  commence  in  futuro. 

(2).  Statute  taking  effect  July  1,  1850:  "Any  estate 
which   would   be   good   as   an   executory   devise   or   bequest 

(477);  Hawkins,  Wills,  208;  Wilkinson  v.  South,  7  T.  R.  555. 
And  because  of  the  fatal  effect  of  an  indefinite  failure  of  issue 
on  a  limitation  over  of  personal  property,  we  are  told  by  Fearne 
(476),  that  "courts  in  the  case  of  personal  estate  generally  incline 
to  pay  attention  to  any  circumstances  or  expression  in  the  will 
that  seems  to  afford  a  ground  for  construing  a  limitation  after 
dying  without  issue,  to  be  a  dying  without  issue  living  at  the 
death  of  the  party,  in  order  to  support  the  devise  over."  It  has 
resulted  that  the  rules  of  construction  are  not  in  all  cases  the 
same,  as  to  definite  and  indefinite  failure  of  issue,  in  wills  of 
realty  and  personalty;  and  some  expressions  which  make  a  defi- 
nite failure  of  issue  as  to  personalty  are  insufficient  for  that  pur- 
pose as  to  realty.  For  review  of  Virginia  cases,  see  1  Tuck.  Com., 
Book  II.,  158-161;  2  Min.  Ins.  442-'43. 

It  should  be  added,  that,  by  analogy,  the  Rule  in  Shelley's  Case 
has  been  held  to  operate  upon  gifts  of  personal  property  where 
the  requisites  are  present  which  would  render  it  applicable  in  a 
conveyance  of  realty;  so  that,  for  example,  a  gift  of  a  term  of 
years  to  A  for  life,  remainder  to  the  heirs  of  his  body,  gives  A 
the  absolute  property  by  the  Rule  in  Shelley's  Case,  and  the  heirs 
of  his  body  take  nothing.  Fearne  (491);  Wms.  Pers.  Prop. 
(267);  3  Jarm.  Wills  (376);  2  Min.  Ins.  (4th  ed.),  407;  22  Am. 
&  Eng.  Ency.  Law,  512;  11  Am.  St.  R.  106,  note;  Hughes  v.  Nick- 
las  (Md.),  14  Am.  St.  R.  377.  But  the  rule  is  not  so  impera- 
tive as  to  personalty  as  it  is  in  limitation  of  realty;  and  it  will 
yield  to  evidence  of  intention,  apparent  on  the  face  of  the  will, 
that  the  words  "heirs,"  "issue,"  etc.,  are  intended  as  words  of 
purchase.  See  Gray,  Perpetuities,  §  647,  n.  3;  Ex  parte  Wynch,  5 
De  G.  M.  &  N.  188;  Smith  v.  Butcher,  10  Ch.  D.  13.  In  Virginia, 
the  Rule  in  Shelley's  Case  has  been  abolished  as  to  personalty 
by  the  same  statute  which  abolished  it  as  to  real  estate.  See 
§  199,  supra. 


§234]  EXECUTORY    INTERESTS.  289 

shall  be  good  if  created  by  deed."  Code  1849,  cli.  116,  §  5; 
Code  1887,  §  2428.  This  statute  destroys  the  distinction 
between  devises  and  deeds  as  to  the  validity  of  executory 
interests,  and  sanctions  the  doctrines  of  executory  devises 
and  bequests  as  equally  applicable  to  deeds;  thus  permitting 
a  fee  on  a  fee  by  way  of  a  deed,  and  validating  by  deed  with- 
out uses  the  other  limitations  which  were  formerly  void  ex- 
cept when  found  in  a  will,  or  in  a  deed  by  way  of  use.1 

1  Executory  Interests  in  Virginia. — Besides  the  statutes  men- 
tioned in  the  text,  two  other  statutes  may  he  considered  as  to 
their  effect  on  executory  interests  in  Virginia: 

1.  Act  of  January  1,  1787  (the  Virginia  Statute  of  Uses),  giv- 
ing effect  to  the  deeds  of  bargain  and  sale,  lease  and  release  and 
covenant  to  stand  seised  to  use,  and  declaring  that  "the  posses- 
sion [i.  e.,  legal  title]  of  the  bargainor,  releasor  or  covenantor, 
shall  be  deemed  transferred  to  the  bargainee  releasee  or  person 
entitled  to  the  use,  as  perfectly  as  if  the  bargainee,  releasee  or 
person  entitled  to  the  use  had  been  enfeoffed  with  livery  of  seisin 
of  the  land  intended  to  be  conveyed  by  such  deed  or  covenant." 
Code  Va.,  §  2426.  For  full  text  and  explanation  of  the  statute, 
see  §  116,  supra.  Under  this  statute,  by  bargain  and  sale  or 
covenant  to  stand  seised,  it  seems  (1)  that  a  freehold  could  be 
made  to  commence  in  futuro  before  the  Act  of  1820,  above  cited, 
declaring  that  "any  estate  may  be  made  to  commence  in  futuro 
by  deed  in  like  manner  as  by  will";  and  (2)  that  a  fee  could  be 
limited  on  a  fee  before  the  act  of  July  1,  1850,  above  cited,  de- 
claring that  "any  estate  which  would  be  good  as  an  executory 
devise  or  bequest  shall  be  good  if  created  by  deed."  See  Gray, 
Perpetuities,  §§  55-66;  2  Min.  Ins.  (4th  ed.)  431,  808,  905;  Camp 
v.  Cleary,  76  Va.  140;   Ocheltree  v.  McClung,  7  W.  Va.  232. 

2.  Act  of  July  1,  1850,  declaring  that  "all  real  estate,  as  re- 
gards the  conveyance  of  the  immediate  freehold  thereof,  shall  be 
deemed  to  lie  in  grant  as  well  as  in  livery."  Code  Va.,  §  2417; 
§  117,  supra.  Under  this  statute  it  seems  that,  by  deed  of  grant, 
a  freehold  can  be  made  to  commence  in  futuro  without  the  aid  of 
the  act  of  1820;  and  that  a  fee  could  be  mounted  on  a  fee,  even 
if  the  statute  of  July  1,  1850,  had  not  been  enacted,  declaring 
that  "any  estate  which  would  be  good  as  an  executory  devise  or 
bequest  shall  be  good  if  created  by  deed."  See  2  Min.  Ins.  (4th 
ed.)  779,  where  it  is  said:  "Under  the  statute  of  grants,  by  means 
of  a  grant  an  estate  of  freehold  in  lands  may  be  made  to  com- 

19 


290  REAL    PROPERTY.  [Chap.  11 

mence  at  a  future  time,  and  an  estate  in  fee  simple,  after  hav- 
ing become  vested,  may  be  made  to  shift,  upon  the  occurrence 
of  a  future  contingency,  from  one  to  another,  as  at  common  law 
could  not  be  done  at  all;  and  before  this  statute  could  be  done 
only  by  means  of  wills,  and  very  imperfectly  with  us  by  means  of 
the  conveyances  under  the  statute  of  uses  [but  see,  as  to  a  free- 
hold to  commence  in  futuro,  the  statute  of  1820];  the  statute  of 
grants  thus  introducing  a  new  class  of  executory  or  future  limi- 
tations, namely,  executory  or  future  grants,  in  addition  to  execu- 
tory or  future  devises  and  executory  or  future  uses."  See,  also, 
2  Min.  Ins.  430,  827;  Gray,  Perpetuities,  §§  67,  68.  For  the  doc- 
trine of  ut  res  magis  valeat  quam  pereat,  as  applied  to  deeds  of 
grant,  see  §  118,  supra. 


CHAPTER  XII. 

POWERS. 

I. — Powers   of  Appointment   over  Property. 

§  235.  Definition. — A  power  of  appointment  is  an  author- 
ity conferred  on  a  person  enabling  him  to  dispose*  of  an 
interest  vested  either  in  himself  or  in  some  third  person. 
Bispham's  Eq.  (5th  ed.)  §  256;  18  Am.  &  Eng.  Ency.  Law 
(1st  ed.),  878,  n.  1;  Burleigh  v.  Clough  (N.  EL),  13  Am. 
Rep.  23,  26;  Hopkins  Real  Prop.  308.  A  power  is  not 
absolute  property,  nor  an  estate,  but  authority  to  appoint 
an  estate;  i.  e.,  to  indicate  to  whom  it  shall  pass.  Powers 
of  appointment  operate  on  the  legal  title  in  England  under 
the  Statute  of  Uses  and  the  Statute  of  Wills;  and  in  Vir- 
ginia under  the  Statute  of  Wills  nad  the  Statutes  of  Grants. 
2  Min.  Ins.  820;  Wms.  R.  P.  (294). 

§  236.  Example  of  a  Power  Under  the  Statute  of  Uses. — 
Suppose  X  conveys  land  to  A  and  his  heirs,  to  such  uses 
as  B  shall  by  any  deed  or  by  his  will  appoint;  and  in 
default  of  and  until  such  appointment  by  B,  to  the  use  of 
C  and  his  heirs.  Now  let  B  exercise  the  power  by  deed  or 
by  will  in  favor  of  D.  Then  the  use  appointed  to  D  is 
executed  by  the  Statute  of  Uses,  and  D  has  the  legal  title, 
which  shifts  to  him  from  C,  who  was  entitled  until  appoint- 
ment by  B.  In  the  above  example  the  parties  are  named 
as  follows:  X  is  the  donor  of  the  power,  i.  e.,  its  giver  and 
creator;  A  is  the  feoffee  to  uses  (reservoir  of  seisin) ;  B  is 
the  donee  of  the  power,  who,  by  its  exercise,  becomes  the 
appointor;  C  is  the  person  entitled  until  and  in  default  of 
appointment  by  B;  and  D  is  the  appointee,  i.  e.,  the  person 
who  takes  by  and  under  B's  appointment.    Wms.  R.  P.  (294). 

291 


292  REAL    PROPERTY.  [Chap.  12 

§  237.  Example  of  a  Power  Under  the  Statute  of  Wills. — 
X  devises  his  land  to  his  widow  for  her  life,  and  authorizes 
her  to  appoint  by  her  will  the  said  land  to  his  children  in 
such  shares  as  she  shall  see  fit;  and  in  default  of  such 
appointment,  he  directs  that  the  land  be  divided  equally 
among  his  children.  Here  X  is  the  donor  of  the  power;  his 
widow  is  the  donee,  and  becomes  the  appointor  in  case  she 
appoints;  X's  children  are  the  objects  of  the  power,  i.  e., 
the  class  among  whom  the  appointment  may  be  made;  and 
when  it  is  made  to  them,  they  become  the  appointees;  and 
those  who  are  entitled  in  default  of  appointment  are  all  the 
children  equally.  See  Rhett  v.  Mason,  18  Grat.  541 ;  Morriss 
v.  Morriss,  33  Grat.  51;  McCamant  v.  Nuckolls,  85  Va.  331. 
For  an  example  of  a  life  estate  by  deed,  with  power  of  ap- 
pointment, see  Norris  v.  Woods,  89  Va.  873. 1 

1  Intention  to  Execute  a  Powee. — In  Lee  v.  Simpson,  134  U.  S. 
572,  589,  the  court  says:  "The  question  of  the  execution  of  a 
power  is  fully  discussed  by  Mr.  Justice  Story  in  Blagge  v.  Miles, 
1  Story,  426.  The  rule  laid  down  in  that  case  is,  that  if  the  donee 
of  the  power  intends  to  execute  it,  and  the  mode  is  in  other  re- 
spects unexceptionable,  that  intention,  however  manifested, 
whether  directly  or  indirectly,  positively  or  by  just  implication, 
will  make  the  execution  valid  and  operative;  that  the  intention 
to  execute  the  power  must  be  apparent  and  clear,  so  that  the 
transaction  is  not  fairly  susceptible  of  any  other  interpretation, 
but  if  it  be  doubtful  under  all  the  circumstances,  then  that  doubt 
will  prevent  it  from  being  deemed  an  execution  of  the  power; 
and  that  it  is  not  necessary,  however,  that  the  intention  to  exe- 
cute the  power  should  appear  by  express  terms,  or  recitals  in  the 
instrument,  but  it  is  sufficient  that  it  appears  by  words,  acts,  or 
deeds,  demonstrating  the  intention. 

"Judge  Story  states,  as  the  result  of  the  English  authorities, 
that  three  classes  of  cases  have  been  held  to  be  sufficient  demon- 
strations of  an  intended  execution  of  a  power:  (1)  Where  there 
has  been  some  reference  in  the  will  or  other  instrument  to  the 
power;  (2)  Or  a  reference  to  the  property  which  is  the  subject 
on  which  it  is  to  be  executed;  (3)  Or  where  the  provision  in  the 
will,  or  other  instrument,  executed  by  the  donee  of  the  power, 


§§  237, 238]  POWERS.  293 

§238.  The  Several  Kinds  of  Powers.— (1)  The  donee 
may  have  a  general  power  to  appoint  to  any  person  what- 
soever, or  it  may  be  special,  as  to  appoint  to  or  among  a 
particular  class,  e.  g.,  children  only,  or  children  and  grand- 
children, etc.  But  though  the  power  is  special  as  to  the 
class,  the  donee  may  have  discretion  as  to  the  shares;  or 
he  may  be  authorized  to  appoint,  if  he  chooses,  all  to  any 

would  otherwise  be  ineffectual,  or  a  mere  nullity;  in  other  words, 
it  would  have  no  operation  except  as  an  execution  of  the  power. 
The  rule  thus  stated  was  referred  to  with  approval  by  this  court 
in  Blake  v.  HaivJcins,  98  U.  S.  315,  326,  and  in  Warner  v.  Connecti- 
cut Mutual  Life  Ins.  Co.,  109  U.  S.  357,  366;  by  the  Court  of  Ap- 
peals of  New  York  in  White  v.  Hicks,  33  N.  Y.  383,  392;  and  by 
the  Supreme  Court  of  Illinois  in  Funk  v.  Eggleston,  92  111.  515, 
538,  539,  547  [34  Am.  Rep.  136].  See,  also,  Meeker  v.  Breintnall, 
38  N.  J.  Eq.  345."   And  see  Walke  v.  Moore,  95  Va.  729. 

As  to  the  third  class  of  cases,  supra,  viz.:  where  the  instrument 
would  have  no  operation  except  as  an  execution  of  a  power, 
Jarman  (2  Jarm.,  Wills,  5th  Am.  ed.  273),  thus  lays  down  the 
rule  in  England  prior  to  the  Wills  Act  of  1  Victoria,  taking  effect 
January  1,  1838:  "Thus  if  a  testator,  by  a  will  made  before,  and 
not  republished  on  or  since  the  first  of  January,  1838,  devises  all 
his  hereditaments,  or  real  estate,  and  it  appears  that  he  had  no 
real  estate  at  the  time  of  its  execution,  but  that  he  had  a  testa- 
mentary power  over  real  estate,  the  devise  will  operate  as  an  ap- 
pointment under  such  power.  On  the  other  hand,  if  the  testator 
had  real  estate  on  which  the  will  could  operate,  it  will  be  pre- 
sumed that  the  devise  was  made  with  reference  to  such  property, 
and  not  as  an  exercise  of  the  power."  And  see  18  Am.  &  Eng. 
Ency.  Law,  930,  and  notes.  But  this  is  now  changed  by  statute  in 
England  and  Virginia,  and  a  general  devise  of  real  or  personal 
property  operates  as  the  exercise  of  a  power  of  appointment,  un- 
less a  contrary  intention  shall  appear  by  the  will.  For  the  Eng- 
lish statute  (1  Vict,  c.  26,  §  27),  see  2  Jarm.,  Wills,  279.  The 
Virginia  statute  is  based  on  the  English,  and  is  as  follows  (C.  V., 
§  2526) :  "A  devise  or  bequest  shall  extend  to  any  real  or  per- 
sonal estate  (as  the  case  may  be)  which  the  testator  has  power 
to  appoint  as  he  may  think  proper,  and  to  which  it  would  apply 
if  the  estate  were  his  own  property;  and  shall  operate  as  an  exe- 
cution of  such  power,  unless  a  contrary  intention  shall  appear 
by  the  will."    The  words,   "as  he  may  think  proper,"  refer  to 


294  REAL    PROPERTY.  [Chap.  12 

one  of  the  class.  See  McCamant  v.  Nuckolls,  85  Va.  331; 
Thrasher  v.  Ballard,  35  W.  Va.  524;  Bisph.  Eq.  §  256.1 

the  extent  of  the  power  as  regards  the  objects,  and  not  to  the 
mode  in  which  it  is  to  be  exercised,  as,  e.  g.,  by  will  only,  and 
not  by  deed.  2  Jarm.,  Wills,  281;  Machir  v.  Funk,  90  Va.  284.  It 
is  also  held  in  Machir  v.  Funk  to  be  an  established  common  law 
rule  that  when  a  power  is  authorized  to  be  executed  on  a  contin- 
gent event,  it  may,  unless  contrary  to  the  intention  of  the  party 
creating  it,  be  executed  before  (though  it  cannot  take  effect  until) 
the  contingency  happens.  1  Sugden,  Powers,  332.  See  Thorndike 
v.  Reynolds,  22  Grat.  21. 

Illusory  Appointments. — In  Williams,  Personal  Property  (4th 
Am.  ed.),  271,  it  is  said,  speaking  of  a  power  of  appointment  to 
children:  "Formerly  [i.  e.,  in  England]  if  such  a  power  was  so 
worded  as  not  to  authorize  an  exclusive  appointment  to  some  or 
one  of  the  children,  it  was  held  by  the  Court  of  Chancery,  as  a 
rule  of  equity,  that  each  child  ought  to  have  a  substantial  share; 
and  an  appointment  to  any  child  of  a  very  small  share  was  called 
an  illusory  appointment,  and  was  held  void.  But  this  doctrine 
having  given  rise  to  difficulties  and  family  disputes  from  the 
uncertainty  of  the  question,  what  was  too  small  or  what  was  a 
sufficient  share,  the  meddlesome  doctrine  of  equity  on  this  point 
was,  a  few  years  ago,  abolished  by  act  of  Parliament  (1  Wm.  IV., 
c.  46);  and  now  the  appointment  of  any  share,  however  small, 
cannot  be  set  aside  on  the  ground  of  its  being  illusory.  The  act 
extends,  as  did  the  doctrine,  to  real  estate  as  well  as  personal; 
but  landed  property,  from  its  nature,  is  seldom  cut  up  into  lit- 
tle portions." 

But  the  "meddlesome  doctrine  of  equity,"  above  described,  has 
not  been  abolished  in  the  United  States;  and  when  the  power  is 
to  appoint  among  a  certain  class,  or  in  any  manner  which  does 
not  indicate  the  power  of  selection  of  certain  objects  to  the  ex- 
clusion of  others,  all  must  have  something,  and  the  gift  to  one 
or  more  of  the  class  of  next  to  nothing  will  be  held  illusory  and 
invalid.  And  when  an  exclusive  appointment  is  not  authorized, 
an  appointment  by  which  an  object  of  the  power  is  entirely  ex- 
cluded will  be,  a  fortiori,  void.  And  this  is  still  true  in  England 
since  the  statute  abolishing  the  doctrine  of  illusory  appoint- 
ments. See  Wms.  Pers.  Prop.  (271),  and  Am.  notes;  Alcyn  v. 
Belchier,  1  Lead.  Cas.  Eq.  400;  2  Min.  Ins.  (4th  ed.),  820;  18  Am. 
&  Eng.  Ency.  Law,  974;  Knight  v.  Yarorough,  Gilmer  (Va.)  27; 
Rhett  v.  Mason,  18  Grat.  541,  567. 


§§  238,  239]  POWERS.  295 

(2).  The  power  may  be  a  power  in  trust,  which  the  donee 
must  exercise  in  favor  of  the  objects.  Here  he  is  a  donee- 
trustee;  and  not  to  exercise  the  power  will  be  a  breach  of 
the  trust.  Such  donee-trustee  may  have  discretion  as  to 
the  shares  to  be  appointed;  but  if  he  fails  altogether  to 
appoint,  a  court  of  chancery  will  divide  the  property  among 
the  objects  equally,  since  "equality  is  equity."  See  Bisph. 
Eq.,  §  77;  2  Pom.  Eq.  §  1002;  1  Perry  on  Trusts,  §  248; 
Mitchells  v.  Johnsons,  6  Leigh,  461 ;  Atwoocl  v.  Shenandoah, 
etc.,  R.  Co.,  85  Va.  966,  993. 

(3).  The  power  may  be  a  naked  power,  i.  e.,  a  power  not 
coupled  (or  clothed)  with  a  trust.  Such  a  power  is  also 
called  a  mere  power,  because  it  is  a  power  merely,  without 
the  element  of  trust.  Such  a  mere  power  not  in  trust  is, 
as  to  its  exercise,  discretionary  with  the  donee;  and  if  he 
makes  no  appointment  at  all,  a  court  of  chancery  will  not 
interfere  in  favor  of  those  who  might  have  been  the  ap- 
pointees.    See  2  Pom.  Eq.,  §  920. 

§  239.  Fraud  on  a  Power. — If  a  power  is  not  exercised  in 
good  faith,  and  for  the  purpose  for  which  it  was  created, 
such  an  exercise  will  be  deemed  a  fraud  on  the  power, 
and  will  be  set  aside  in  equity  on  a  bill  filed  by  a  party  in 
interest,  i.  e.,  by  a  party  entitled  in  default  of  appointment. 
Aleyn  v.  Belchier,  1  Lead.  Cas.  in  Eq.  (377)  note;  6  Am. 
St.  E.  885,  note.  If  the  power  be  a  power  in  trust,  its  im- 
proper exercise  is,  of  course,  relieved  against  in  equity  in 
favor  of  the  beneficiaries,  as  in  any  other  case  of  breach  of 
trust.  But  though  a  power  be  a  mere  power,  and  not  in 
trust,  and  though  the  donee  has  a  discretion  whether  he 
shall  appoint  or  not,  yet  if  he  does  appoint,  he  may  do  so 
in  such  a  manner  as  to  commit  a  fraud  upon  the  power. 
This  is  where  he  is  restricted  by  the  terms  of  the  instru- 
ment conferring  the  power  as  to  the  persons  to  or  among 
whom  he  may  appoint,  or  in  respect  to  other  material  mat- 
ters. Here,  if  he  appoints  in  disregard  of  the  restrictions, 
the  appointment  will  be  set  aside.     And  this  will  also  be 


296  REAL    PROPERTY.  [Chap.  12 

done  when  he  makes  a  corrupt  appointment  to  an  object  of 
the  power,  in  order  to  acquire  a  benefit  for  himself,  either 
directly  or  indirectly.  See  Bisph.  Eq.,  §  256;  "Wins.  Pers. 
Prop.  (4th  ed.)  475.  But  if  the  power  is  not  in  trust, 
and  the  donee  has  absolute  discretion  as  to  the  persons  to 
whom  he  may  appoint,  and  as  to  the  shares,  he  cannot 
commit  a  fraud  on  such  power,  because  it  could  not  be 
said  that  he  had  violated  the  intention  of  the  donor.  In- 
deed, in  such  case,  he  would  have  a  right  to  appoint  himself. 
Wms.  E.  P.  (294) ;  2  Pom.  Eq.,  §  920.  For  an  example  of 
an  appointment  void,  because  not  to  an  object  of  the  power, 
see  Hood  v.  Haden,  82  Va.  588,  where,  under  a  power  to 
appoint  to  children,  the  appointment  was  made  to  the  issue 
of  a  child.  See  Morris  v.  Owen,  2  Call,  520;  Hudsons  v. 
Hudsons,  6  Munf.  362. 

§  240.  Aider  in  Equity  of  the  Defective  Execution  of  a 
Power. 

(1).     What  powers  aided? 

(a).  If  the  power  be  in  trust,  and  the  donee  either  fails 
altogether  to  exercise  it,  or  exercises  it  defectively,  equity 
will  relieve  by  way  of  enforcing  the  trust.     See  Bisph.  Eq. 

§  195. 

(b).    If  the  power  is  not  in  trust  (a  mere  power),  then,  as 

the  donee  is  under  no  obligation  to  exercise  it,  if  he  omits 
altogether  to  do  so,  equity  will  not  interfere.  This  is  what 
is  meant  by  saying  that  the  non-execution  of  a  power  will 
not  be  aided  in  equity. 

(c).  But  though  the  power  is  a  mere  power,  and  its  exer- 
cise discretionary  with  the  donee,  yet  if  he  has  attempted 
to  exercise  it,  and  thereby  shown  his  intention  to  appoint, 
equity  will  not  suffer  the  appointment  to  fail  because  the 
formalities  prescribed  by  the  donor  of  the  power  as  to  the 
mode  of  its  exercise  have  not  been  fully  complied  with.  It 
is  otherwise  at  law,  where  a  power  not  duly  exercised  is 
considered  as  not  exercised  at  all.     And  even  in  equity  the 


§§  239, 240]  POWERS.  297 

doctrine  of  aider  of  the  defective  execution  of  a  power  is 
carefully  circumscribed. 

(2).  AVhat  defects  aided  in  equity?  Only  those  of  form, 
not  those  of  substance.  Freeman  v.  Eacho,  79  Va.  43.  And 
it  is  considered  a  formal  defect  if  the  instrument  of  exer- 
cise has  a  less  number  of  witnesses  than  the  donor  pre- 
scribed, but  not  if,  when  required  to  be  attested,  there  are 
no  witnesses  at  all.  See  Justis  v.  English,  30  Grat.  565. 
If  a  power  is  required  to  be  exercised  by  deed,  its  exercise 
by  will  is  considered  a  formal  defect,  and  is  aided  in  equity; 
for  what  one  may  do  up  to  death  by  deed,  may  well  be 
done  at  death  by  will.  But  if  the  exercise  is  required  to 
be  by  will,  then  its  exercise  by  deed  is  a  substantial  defect, 
and  equity  will  not  aid;  for  in  this  case  it  is  contemplated 
that  the  donee  shall  have  the  power  of  revocation  and 
change  until  he  dies  (a  will  being  ambulatory),  and  this  is 
prevented  by  a  deed.  Bisph.  Eq.,  p.  249,  note  (a).  And 
the  power  to  appoint  to  females  in  trust,  and  to  their  sepa- 
rate use,  is  not  aided,  and  fails  even  in  equity,  if  the  ap- 
pointment to  them  is  of  legal  estates  not  to  their  separate 
use.    See  Morriss  v.  Morriss,  33  Grat.  51. 1 

1  Will  for  Deed  in  the  Exercise  of  a  Power. — In  Hood  v. 
Haden,  82  Va.  588,  592,  it  is  said:  "Upon  this  point  the  law  is 
very  exact,  and  the  cases  uniformly  hold  that  all  the  forms  and 
conditions  annexed  to  the  exercise  of  a  power  must  be  strictly 
complied  with.  Thus,  if  a  deed  be  required,  the  power  cannot  be 
executed  by  a  will;  and  if  a  will  be  required,  that  mode  alone 
will  suffice."  And  s^e  this  language  reproduced  in  Oaskins  v. 
Finks,  90  Va.  384,  385. 

In  each  of  the  above  cases  (as  also  in  that  of  Doe  v.  Tlwrley, 
10  East,  438,  cited  by  the  court),  the  power  was  authorized  to  be 
exercised  by  will,  and  the  attempt  to  exercise  it  by  deed  was 
properly  held  invalid,  for  the  reasons  stated  in  the  text.  But  the 
converse  proposition  laid  down,  that  a  power  authorized  to  be 
exercised  by  deed  cannot  be  exercised  by  will,  is  a  dictum  merely; 
and  if  it  is  meant  that  such  execution  is  a  defect  of  substance, 
and  cannot  be  aided  in  equity,  it  is  contrary  to  all  the  authori- 
ties.   See  1  Lead.  Cas.  in  Eq.  365  (note  to  Tollett  v.  Tollett) ;   1 


298  REAL    PROPERTY.  [Chap.  12 

(3).  In  whose  favor  aided?  The  appointee  must  be  a 
purchaser  from  the  donee;  or  a  creditor  whose  debt  is  to  be 
paid  or  secured  (Freeman  v.  Eacho,  79  Va.  43,  47) ;  or  there 
must  be  a  meritorious  consideration,  as  in  the  case  of  an 
appointment  to  a  wife,  child,  or  charity.  Morriss  v.  Morriss, 
supra;  2  Pom.  Eq.,  §  589;  Wins.  E.  P.  (299). 

(4).  Against  whom  aided.  Equity  will  not  aid  if  the 
person  entitled  in  default  of  appointment  has  as  high  a 
claim  as  the  attempted  appointee.  Thus  equity  will  aid 
a  bona  fide  purchaser  against  the  heir  at  law  or  remainder- 
man, but  not  a  grandchild  against  a  child,  nor,  it  is  pre- 
sumed, one  charity  against  another.  Eor  at  law  the  in- 
formal appointment  is  void,  and  hence  the  legal  title  is  in 
him  who  is  entitled  in  default  of  appointment;  and  equity 
will  not  aid  the  attempted  appointee  unless  he  has  a  higher 
claim,  because  it  is  a  maxim  in  equity  that  "when  the  equities 
are  equal,  the  law  will  prevail."  See  Tollett  v.  Tollett,  1 
Lead.  Cas.  Eq.  369;  1  Story  Eq.  Jur.,  §  177;  Bisph.  Eq., 
§  195;  Morriss  v.  Morriss,  33  Grat.  51. 

N.  B.  The  equitable  doctrine  of  aider  of  the  defective  exe- 
cution of  powers  is  confined  to  authorities  conferred  by  the 
voluntary  act  of  the  donor  in  wills,  deeds,  and  settlements ;  it 
does  not  extend  to  powers  created  and  regulated  by  statute. 
The  defective  execution  of  statutory  powers,  in  the'  failure 
to  comply  with  the  prescribed  requisites,   cannot  be  aided 

Story  Eq.  Jur.,  §  173;  2  Pom.  Eq.,  §  173;  2  Min.  Ins.  (4th  ed.) 
822;  Hopkins,  Real  Prop.  318;  Bruce  v.  Bruce,  11  L.  R.  Eq.  371. 
See  18  Am.  &  Eng.  Ency.  Law,  926,  982,  983. 

As  to  the  execution  of  a  will  in  the  exercise  of  a  power,  it  is 
enacted  by  C.  V.,  §  2515:  "No  appointment  made  by  will  in  the 
exercise  of  any  power  shall  be  valid  unless  the  same  be  so  exe- 
cuted that  it  would  be  valid  for  the  disposition  of  the  property  to 
which  the  power  applies  if  it  belonged  to  the  testator;  and  every 
will  so  executed,  except  the  will  of  a  married  woman,  shall  be  a 
valid  execution  of  a  power  of  appointment  by  will,  notwithstand- 
ing the  instrument  creating  the  power  expressly  require  that  a 
will  made  in  execution  of  such  power  shall  be  executed  with 
some  additional  or  other  form  of  execution  or  solemnity." 


§§  240-241]  POWERS.  299 

in  equity.  2  Pom.  Eq.,  §§  590,  834.  Thus,  in  Williams  v. 
Cudd,  26  S.  C.  213  (4  Am.  St.  Kep.  714),  it  is  held  that 
equity  will  not  aid  the  defective  execution  of  a  statutory 
power  given  a  married  woman  to  relinquish  her  inheritance 
in  lands.  And  the  same  has  been  held  of  the  power  of  a 
tenant  in  tail  to  make  leases  under  the  statute  of  32  Hen. 
VIII.,  ch.  28.  1  Story  Eq.,  §  177;  Wms.  R.  P.  (56)  ;  Bisph. 
Eq.,  §  195.1 

II.     Estates  in  land  with  a  power  of  disposition  annexed. 

§  241.  Power  of  Appointment  Distinguished  from,  an  In- 
terest in  Land. — A  power  of  appointment  is  not  itself  an  es- 
tate; but  it  is  an  authority  given  by  the  owner  of  property 

1  Defective  Execution  of  a  Power  by  a  Married  Woman. — In 
Freeman  v.  Eacho,  79  Va.  43,  it  is  held  that  the  defective  exercise 
of  a  power  conferred  on  a  married  woman  by  a  deed  of  settlement 
will  be  aided  in  equity  in  the  same  manner,  and  upon  the  same 
conditions,  as  if  she  were  sui  juris.  The  court  says:  "It  would 
seem  strangely  inconsistent  to  hold  that,  to  the  extent  she  is  em- 
powered to  act,  she  is  sui  juris,  and  to  deny  to  her  acts  within  her 
competency  [that  is,  the  attempted,  but  defective  exercise  of  a 
power]  the  effect  of  which,  under  like  circumstances,  would  be 
given  to  those  of  a  person  not  laboring  under  disability.  The 
case  is,  therefore,  unlike  an  application  to  reform  a  married 
woman's  conveyance  under  a  statute  relating  to  alienations  by 
married  women.  And  the  distinction  is  obvious.  At  common  law 
a  feme  covert  had  no  power  to  convey  her  land  except  by  fine 
and  recovery.  This  disability,  however,  is,  to  a  certain  extent, 
removed  by  statute  in  this,  and  doubtless  in  most,  if  not  all,  the 
States  of  the  Union,  whereby  she  is  enabled,  by  uniting  with  her 
husband,  and  by  privy  examination,  to  make  a  conveyance  of 
her  property.  But  these  statutes,  being  in  derogation  of  the 
common  law,  are  strictly  construed,  and  must  be  closely  followed 
to  give  validity  to  the  conveyance.  The  courts,  therefore,  very 
properly  refuse  to  reform  such  a  conveyance  against  the  wife; 
for  to  do  so  would  be,  in  effect,  to  make  a  conveyance  not  author- 
ized by  statute.  And  the  same  rule  applies  to  a  defective  ac- 
knowledgment by  a  married  woman,  which  is  an  essential  part 
of  the  execution  of  the  deed."  As  to  the  privy  examination  of  a 
married  woman  (no  longer  required),  see  now,  in  Virginia,  C.  V. 
§  2502,  taking  effect  May  1,  1888;  infra,  §  . 


300  REAL    PROPERTY.  [Chap.  12 

to  the  donee  of  the  power  to  designate  what  person  or 
persons  shall  receive  the  property.  The  donee  of  the  power 
may  have  a  limited  estate  of  his  own  in  the  property,  as, 
e.  g.,  a  life  estate  in  land,  with  power  to  appoint  the  rever- 
sion in  fee.  But  such  power  to  appoint  does  not  necessarily 
enlarge  the  estate  on  which  it  is  engrafted;  the  power  may 
be  distinct  and  come  in  by  way  of  addition,  and  require 
to  be  exercised  in  order  to  dispose  of  the  inheritance.  The 
rule  is  that  when  an  estate  is  given  expressly  for  life,  though 
a  general  power  of  appointment  is  annexed,  it  does  not  con- 
vert the  life  estate  into  a  fee,  but  the  donee  takes  only  a 
life  estate,  unless  there  is  some  manifest  general  intent  to 
the  contrary  in  the  instrument.  Shermer  v.  Shermer,  1 
Wash.  (Va.)  266  (1  Am.  Dec.  460) ;  Burivell  v.  Anderson, 
3  Leigh  (348);  May  v.  Joynes,  20  Grat.  692;  Milhollen  v. 
Rice,  13  W.  Va.  510,  524;  49  Am.  Dec.  117.  And  when 
a  testator  gives  a  life  estate  with  a  general  power  of  ap- 
pointment of  the  inheritance,  and  in  case  of  failure  to  ap- 
point, gives  the  estate  to  certain  persons,  the  latter  take 
a  vested  remainder,  subject  to  be  defeated  by  the  exercise 
of  the  power,  and  not  an  executory  devise.  Fearne,  Ee- 
mainders  (227);  20  Am.  &  Eng.  Ency.  Law,  857;  Richard- 
son v.  Harrison,  16  Q.  B.  Div.  85;  Rhett  v.  Mason,  18  Grat. 
541,  569.  If  the  donee  does  not  appoint,  and  there  is  no 
remainder  over,  the  property  reverts  to  the  donor,  or  to  his 
heirs  or  representatives.  Frazier  v.  Frazier,  2  Leigh,  642; 
2  Min.  Ins.  (4th  ed.)  821.  See  Johnson  v.  Gushing,  15  N. 
H.  298   (41  Am.  Dec.  694,  and  n.  704-'6. 

§  242.  Effect  of  a  Power  of  Disposition  Over  Property  on 
the  Estate  of  the  Devisee — Validity  of  Limitation  Over. — 
See  for  full  discussion,  Rubey  v.  Barnett,  12  Mo.  3;  49  Am. 
Dec.  112,  and  note;  also  1  Va.  Law  Beg.  219,  note  by  Judge 
Burks  to  Farish  v.  Wayman,  91  Va.  430.  The  cases  are 
difficult  to  reconcile  on  any  other  principle  than  that  of 
giving  free  play  to  the  testator's  intention;  but  the  sub- 
ject may  be  thus  summarized. 


§§  241-243]  POWERS.  301 

§  243.    (1) .  When  an  Express  Estate  for  Life  is  Given,  and 
a  Power  of  Disposition  Over  the  Reversion  is  Annexed. — In 

this  case  the  general  rule  is  that  the  devisee  for  life  will 
not  take  an  estate  in  fee,  notwithstanding  the  power  to  dis- 
pose of  the  inheritance.  20  Am.  &  Eng.  Ency.  Law,  955, 
and  notes.  The  express  estate  for  life  negatives  the  inten- 
tion to  give  the  fee  simple,  and  converts  those  words  into 
words  of  mere  power,  which,  standing  alone,  would  have 
been  construed  to  carry  an  interest.  Thus  in  Rubey  v.  Bar- 
nett,  supra,  the  testator  said:  "First  my  will  is  that  my  be- 
loved wife,  Polly  Horn,  shall  have  all  my  estate,  both  real 
and  personal,  so  long  as  she  may  live;  secondly,  my  will  is 
that  my  wife  dispose  of  all  said  estate  as  she  may  think 
most  advisable  at  her  death."  Held,  that  Polly  took  but  a 
life  estate  with  a  distinct  and  naked  gift  of  a  power  of  dis- 
position of  the  reversion;  and  that  if  she  made  no  disposi- 
tion, the  reversion  descended  to  the  heirs  of  the  testator. 
And  see  to  the  same  effect,  Burleigh  v.  Clough,  52  N".  H. 
267  (13  Am.  Eep.  23) ;  Funk  v.  Eggleston,  92  111.  515  (34 
Am.  Eep.  136).  And  again,  it  is  often  held  that  where  a 
power  of  disposal  accompanies  a  bequest  or  devise  of  a  life 
estate  the  power  is  considered  to  be  over  the  life  estate 
only,  and  is  limited  to  such  disposition  as  a  life  tenant 
can  make,  unless  there  are  other  words  clearly  indicating 
that  a  larger  power  was  intended.  Thus  in  Johns  v.  Johns, 
86  Va.  333,  the  testator  gave  all  of  his  money  ($900)  to  his 
wife  during  her  natural  life  for  the  benefit  of  herself  and 
children,  "to  be  used  as  she  may  think  proper."  Held, 
that  the  use  was  of  the  life  interest  only,  and  the  wife  did 
not  take  the  absolute  property,  as  was  contended  on  her 
behalf.  And  in  Brant  v.  Virginia  Coal  and  Iron  Co.,  93 
U.  S.  326,  the  will  read:  '"I  give  and  bequeath  to  my  be- 
loved wife,  Nancy  Sinclair,  all  my  estate,  both  real  and 
personal,  ....  to  have  and  to  hold  during  her  life,  and  to 
do  with  as  she  thinks  proper  before  her  death."  Held,  that 
the  wife  took  a  life  estate  in  the  property,  with  only  such 


302  REAL    PROPERTY.  [Chap.  12 

power  as  a  life  tenant  can  have;  and  that  her  conveyance 
of  the  real  estate  passed  no  greater  interest. 

§244.  (2).  When  a  Life  Estate  is  Given  Devisee,  with 
Power  of  Disposition  over  the  Reversion — Exception  to  Gen- 
eral Rule. — The  devisee  may  be  held  to  take  a  fee  simple,  if 
otherwise  the  manifest  intention  of  the  will  would  he  de- 
feated. This  is  by  way  of  exception  to  the  general  rule  laid 
down  under  (1)  supra;  and,  resting  on  intention,  must 
depend  on  the  construction  of  the  particular  will.  Thus, 
where  the  limitation  is  of  a  life  estate,  but  there  is  given 
expressly  or  impliedly,  full  power  of  disposition  over  the  fee, 
without  limitation  or  restriction,  the  devisee  is  held  to  take, 
not  the  mere  life  estate,  but  the  fee  itself  by  implication; 
and  a  limitation  over  to  another  is  void.  This  is  known  in 
Virginia  as  the  doctrine  of  May  v.  Joynes  (20  Grat.  692), 
where  the  testator  said:  "I  give  to  my  beloved  and  excel- 
lent wife,  subject  to  the  provisions  hereafter  declared,  my 
whole  estate,  real  and  personal,  and  especially  all  real  estate 
which  I  may  hereafter  acquire,  to  her  during  her  life,  out 
with  full  power  to  make  sale  of  any  part  of  the  said  estate, 
and  to  convey  absolute  titles  to  the  purchasers;  and  use 
the  purchase  money  for  investment,  or  any  purpose  that  she 
pleases;  with  only  this  restriction,  that  whatever  remains  at 
her  death,  shall,  after  paying  any  debts  she  may  owe,  or 
any  legacies  that  she  may  leave,  be  divided  as  follows,"  viz. : 
among  his  children  and  grandchildren.  Held,  that  the  wife 
took  a  fee  simple  in  the  real  estate,  and  an  absolute  property 
in  the  personal  estate,  and  that  the  limitation  over  of  what- 
ever remained  at  her  death  was  inconsistent  with,  and  repug- 
nant to,  such  fee  simple  and  absolute  property,  and  failed 
for  uncertainty.  See  1  Leading  Cases  E.  P.  54,  65,  67; 
2  Id.  478 ;  4  Id.  25,  where  May  v.  Joynes  is  said  to  be 
opposed  to  the  weight  of  authority.  But  it  has  been  followed 
in  a  number  of  cases  in  Virginia,  and  is  supported  by  cases 


§§  243-245]  POWERS.  303 

elsewhere,  and  may  be  defended,  perhaps,  on  the  ground  of 
manifest  intent.1 

§  245.  Cases  Following  May  v.  Joynes. — These  cases  fol- 
low May  v.  Joynes: 

(a).  Cole  v.  Cole,  79  Va.  251 :  "I  give  to  my  wife,  Martha 
A.  E.  Cole,  all  of  my  personal  and  real  estate  during  her 

1  Doctrine  of  May  v.  Joynes  Inapplicable. — In  Cresap  v.  Cresap, 
34  W.  Va.  310,  the  court  says  (p.  316) :  "In  the  will  we  are  con- 
sidering, the  testator  commences  the  disposition  of  his  property 
in  the  following  words:  'I  give  and  bequeath  to  my  beloved  wife, 
Agnes  C.  Cresap,  in  trust,  and  for  her  support  and  maintenance 
during  her  life,  all  my  estate,  both  real  and  personal,  with  full 
power  and  privilege  to  sell  and  convey  any,  all,  or  so  much  of  my 
real  estate,  in  such  manner  as  she  may  see  fit,  in  as  full  and  com- 
plete manner  as  I  myself  can  do;  to  sell  and  dispose  of  my  per- 
sonal estate,  or  so  much  as  she  may  see  fit,  for  her  own  support, 
according  to  her  condition  in  life,  and  for  the  benefit  of  my  estate 
so  far  as  she  may  see  proper.'  Now,  if  the  testator  had  omitted 
from  this  clause  the  words  'in  trust  and  for  her  support  and 
maintenance  during  her  life,'  and  also  the  words  'to  sell  and  dis- 
pose of  my  personal  estate,  or  so  much  as  she  may  see  fit,  for 
her  support,  according  to  her  condition  in  life,  and  for  the  benefit 
of  my  estate,  so  far  as  she  may  see  proper,'  I  would  have  no 
hesitation  in  saying  that  said  testator  intended  by  this  portion 
of  his  will  to  give  his  wife  a  fee  simple  in  the  realty  and  abso- 
lute property  in  the  personalty;  but  those  limiting  words  are 
used  by  the  testator  immediately  in  connection  with  the  language 
which  confers  the  estate  upon  her.  When  we  ask  the  question: 
How  does  he  give  it  to  his  wife?  the  answer  is  prominent,  and 
apparent  on  the  face  of  the  will,  as  plain  as  words  can  make  it, 
'in  trust  for  her  support  and  maintenance  during  life,'  and  this 
language  applies  both  to  real  and  personal  estate."  And  on  p. 
323:  "The  case  of  May  v.  Joynes,  20  Grat.  692,  is  also  cited  to 
sustain  the  position  that  the  wife  took  an  absolute  fee  simple  in 
said  estate  under  this  will;  but  by  reference  to  the  case  it  will 
be  found  very  different  from  the  one  at  bar;  for  in  that  case, 
although  the  property  was  given  to  her  for  life,  she  not  only  had 
full  power  to  sell  the  same,  convey  absolute  title  to  purchasers, 
and  use  the  money  for  investment  or  any  purpose  that  she 
pleased,  with  only  this  restriction,  that  whatsoever  remains  at 
her  death   shall,   after  paying  any  debts  she  may  owe,  or  any 


304  REAL    PROPERTY.  [Chap.  12 

lifetime,  and,  at  her  death,  half  of  the  real  estate  and  half 
of  the  personal  property  that  may  be  on  hand,  to  do  with 
as  she  may  see  proper;  and  the  other  half  of  my  real  estate 
and  personal  property  to  go  to  the  heirs  of  my  brother, 
Sampson  Cole."     See  also  Carr  v.  Effinger,  78  Va.  197. 

(b).  Hall  v.  Palmer,  87  Ya.  354:  "I  will  and  direct  that 
the  whole  of  Susan  J.  Hall's  and  Frances  Maria  Armes' 
interest  in  my  estate  shall  be  held  by  my  executor,  his  ex- 
ecutor, his  heirs,  etc.,  for  the  sole  use  and  benefit  of  them 
during  their  natural  life,  and  at  their  death,  the  balance,  if 
any,  to  their  children. 

(c).  Bowen  v.  Bowen,  87  Ya.  438:  "After  the  payment  of 
all  my  just  debts,  I  give,  devise  and  bequeath  to  my  wife, 
Adelaide  Bowen,  all  my  estate,  real,  personal,  and  mixed, 
for  and  during  her  life;  and  it  is  my  wish  and  desire  that 
my  said  wife  may  sell  and  convey  my  real  estate,  and  receive 
the  purchase  money  therefor ;  sell  and  use  all  of  my  personal 

legacies  that  she  may  leave,  be  divided  as  follows,  etc.  This 
gave  her  the  full  power  to  dispose  of  the  property  as  she  pleased, 
by  will  or  otherwise,  and  is  not  an  analogous  case." 

In  Cresap  v.  Cresap,  there  was  a  limitation  over  as  follows:  "At 
the  death  of  my  dear  wife,  Agnes  C.  Cresap,  I  desire  the  residue 
of  my  estate,  both  real  and  personal,  to  be  distributed  as  follows," 
etc.  The  court  sustained  the  limitation  over,  saying:  "This 
will,  and  its  provisions,  can  easily  be  relieved  of  any  uncertainty 
as  to  quantity  by  ascertaining  the  amount  the  wife  was  entitled 
to,  for  support  according  to  her  condition  in  life,  by  referring 
the  latter  to  a  commissioner."  And  this  passage  from  Schouler 
on  Wills,  §  592,  is  quoted  with  approval:  "The  gift  of  what  re- 
mains undisposed  of  may,  indeed,  be  often  repugnant  to  the  first 
gift,  or  too  nearly  so  to  vest  a  certain  right;  nevertheless,  a  gift 
is  good  of  what  shall  remain  at  the  decease  of  the  first  taker,  if 
the  latter  has  only  a  life  estate  given  him,  or  if  such  gift  is 
preceded  by  a  power  of  disposition  so  restrained  in  its  exercise 
that  the  gift  of  what  is  left  refers  evidently  to  what  shall  remain 
unappropriated  and  unappointed  under  the  power."  See  1  Jarm. 
Wills,  363-365.  And  the  above  extract  from  Schouler  is  also 
quoted  in  Miller  v.  Potterfield.  86  Va.  876,  881,  a  case  strikingly 
like  Cresap  v.  Cresap. 


§§  245,  246]  POWERS.  305 

property,  and  buy  and  sell  with  the  proceeds  of  such  property 
for  her  own  comfort  and  convenience  as  she  may  choose, 
without  accountability  to  any  person  whatever.  In  fact, 
during  the  life  of  my  said  wife,  I  wish  her  to  possess  and 
enjoy  the  said  property  as  if  she  enjoyed  a  fee  simple  and 
absolute  estate  therein.  If,  however,  at  the  death  of  my  said 
wife,  any  of  the  said  property  shall  remain,  I  wish  the  same 
to  be  divided  equally  among  all  my  nephews  and  nieces 
who  may  be  living,"  etc. 

May  v.  Joynes  is  also  followed  in  Farish  v.  Wayman,  91 
Va.  430  (criticized  by  Judge  Burks,  1  Va.  Law  Reg.  220), 
and  in  Robertson  v.  Hardy,  23  S.  E.  Rep.  766,  where  the 
doctrine  is  thus  laid  down  by  Riely,  J.,  speaking  of  a  will 
by  the  first  clause  of  which  the  testator  had  given  per- 
sonal property  to  his  wife  for  her  life :  "  'All  the  personal 
property  remaining  at  my  wife's  death,  of  whatever  kind  or 
nature,'  says  the  testator  in  the  second  clause,  'shall  be 
sold  and  equally  divided'  among  certain  of  his  children. 
The  words  'remaining  at  my  wife's  death'  imply  power  in 
the  wife  to  use,  consume,  and  dispose  of  the  personal  pro- 
perty; and  such  power  implies  absolute  dominion.  Abso- 
lute dominion  imports  absolute  ownership.  When  it  is  the 
intention  of  the  testator  that  the  first  taker  shall  have  an 
unlimited  power  of  disposition  over  the  property  devised 
or  bequeathed,  whether  such  intention  be  expressed  or  neces- 
sarily implied,  a  limitation  over  to  another  is  void,  because 
it  is  inconsistent  with,  and  repugnant  to,  the  estate  given 
to  the  first  taker,  although  the  will  shows  that  it  was  the 
testator's  intention,  in  respect  of  the  subject  of  the  gift, 
that  what  may  remain  of  it  at  the  death  of  the  first  taker 
should  go  to  another."  See  2  Min.  Ins.  (4th  ed.)  917,  1053, 
1073;  Milhollen  v.  Rice,  13  W.  Va.  510;  Davis  v.  Heppert, 
96  Va.  775;  In  re  Burbank,  69  la.  378;  Shaw  v.  Shaw, 
(la.)  88  N.  W.  327. 

§  246.    Cases  Distinguishing  May  v.  Joynes. — The  follow- 
20 


306  REAL    PROPERTY.  [Chap.  12 

ing  Virginia  cases  distinguish  May  v.  Joynes,  and  sustain 
the  limitation  over: 

(a).  Randolph  v.  Wright,  81  Va.  608:  The  devise  was  in 
effect,  "To  my  son,  Edward  and  his  heirs  forever  I  give 
two-thirds  of  my  real  estate;  .  .  .  but  if  Edward  die  with- 
out a  will  or  lawful  issue,  then  to  my  son,  Philip  and  his 
heirs."  Testatrix  died  in  1849.  See  Johnson  v.  Citizens' 
Bank,  83  Va.  63. 

(6).  Johns  v.  Johns,  86  Va.  333.   See  §  243  (1). 

(c).  Smythe  v.  Smythe,  90  Va.  638 :  "I  give  and  bequeath 
unto  my  two  sisters,  Kate  A.,  and  Mattie  B.  Smythe,  all 
my  estate  of  every  kind,  both  real  and  personal,  of  which 
I  may  die  seised,  to  be  by  them  used  and  enjoyed  during 
their  natural  lives.  .  .  .  The  use  and  enjoyment  of 
the  said  property  shall  be  unrestricted  by  my  said  two 
sisters  during  their  natural  lives  should  they  remain  sole, 
carrying  with  such  use  and  enjoyment  the  right  to  sell  and 
convey  said  real  estate  should  they  find  it  desirable  to  do 
so;  but  I  desire  that  they  shall  reinvest  or  loan  the  pro- 
ceeds of  such  sale  in  some  safe  manner,  and  as  far  as  pos- 
sible avoid  the  consumption  of  the  principal;  and  at  the 
death  of  my  two  sisters,  or  the  marriage  of  both,  I  desire 
whatever  of  my  estate  may  remain  shall  vest  in  and  become 
the  property  of  the  little  boy,  Claude  Allison,  whom  I  have 
adopted."    Lewis,  P.,  and  Eichardson,  J.,  dissented. 

§  247.  (3).  When  an  Estate  is  Given  to  a  Person  Gener- 
ally, or  Indefinitely  (as,  "to  A"),  with  a  Power  of  Disposi- 
tion.— Here  the  general  rule  is  that  the  devisee  takes  the  fee 
simple  in  land,  or  the  absolute  interest  in  personalty.  Tiede- 
man  E.  P.,  p.  316,  n.  2;  §  564,  n.  1.  See  Roberts  v.  Lewis, 
163  U.  S.  367  (s.  c.  144  IT.  S.  653),  overruling  Giles  v. 
Little,  104  TJ.  S.  291.  And  in  such  a  case,  if  there  is  a 
limitation  over,  it  is  void  as  a  remainder,  being  after  a  fee 
simple,  and  void  as  an  executory  devise,  because  indefinite 
and  uncertain,  being  in  effect  a  limitation  of  so  much  only 
as  the  first  taker  may  not  happen  to  dispose  of.     Wihnoth 


§§  246-248]  POWERS.  307 

v.  Wilmoth,  34  W.  Va.  426.  But  even  in  this  case,  if  a 
life  estate  only  is  plainly  intended  by  the  will,  a  fee  simple 
in  land,  or  an  absolute  interest  in  personal  property,  will  not 
be  construed  to  pass  to  the  first  taker,  and  a  limitation 
over  will  be  good.  The  great  case  establishing  this  exception 
is  Smith  v.  Bell,  6  Peters  68,  before  the  Supreme  Court  of 
the  United  States.  In  Smith  v.  Bell,  the  will  read:  "Also 
I  ghe  to  my  wife,  Elizabeth  Goodwin,  all  my  personal  estate, 
whatsoever  and  wheresoever,  and  of  what  nature,  kind,  and 
quality  soever,  after  payment  of  my  debts,  legacies,  and 
funeral  expenses,  which  personal  estate  I  give  and  bequeath 
unto  my  said  wife,  Elizabeth  Goodwin,  to  and  for  her  own 
use  and  benefit  and  disposal  absolutely,  the  remainder  of  the 
said  estate,  after  her  decease  to  be  for  the  use  of  the  said 
Jesse  Goodwin  [the  testator's  son]."  It  was  held  that  the 
wife  took  only  a  life  estate  in  the  property  (consisting  mainly 
of  slaves),  and  that  the  son,  Jesse,  had  a  vested  remainder. 
The  ground  of  the  decision  was  the  manifest  purpose  to 
provide  for  both  wife  and  son,  which  could  only  be  accom- 
plished by  such  a  construction.  It  was  therefore  held  by 
Marshall,  C.  J.,  that  the  wife  took  a  life  estate  only;  that 
her  power  of  disposition  over  the  slaves  was  such  (and  no 
more)  as  a  life  tenant  may  make;  and  that  "the  strong 
words  of  bequest"  employed  by  the  testator  probably  re- 
ferred to  that  part  of  the  personal  estate  which  was  trifling 
and  perishable,  and  would  be  consumed  in  the  use,  as  to 
which  the  exercise  of  absolute  ownership  was  necessary  to 
a  full  enjoyment. 

§  248.  Status  of  the  Doctrine  of  Smith  v.  'Bell.— Smith  v. 
Bell  is  approved  in  Miller  v.  Potterfield,  86  Va.  876,  where 
the  will  was  as  follows :  "I  give  and  bequeath  to  my  beloved 
wife,  Elizabeth  Miller,  all  my  property,  both  real  and  per- 
sonal, to  have  and  to  hold  the  same  for  her  own  use  and 
benefit,  and  also  to  make  such  disposition  of  the  same  that 
(sic)  she,  in  her  judgment,  may  deem  best,  should  it  become 
necessary  that  a  part  or  all  should  become  necessary   (sic) 


308  REAL    PROPERTY.  [Chap.  12 

for  the  support  of  herself  and  William  Garrett,  who  I  desire 
should  remain  with  her  during  her  lifetime,  and  have  such 
care  and  attention  given  him  as  he  may  need.  After  the 
death  of  the  said  Elizabeth  Miller,  I  will  and  devise  that 
any  and  all  property  remaining  unused  shall  be  given  to 
the  said  William  Garrett,  to  have  and  to  use  for  his  own 
benefit,  or  to  make  such  disposition  of  as  may  be  deemed 
best  for  his  interest."  Held,  the  wife  took  a  life  estate,  with 
a  conditional  power  of  sale,  and  that  the  limitation  over  to 
William  Garrett  was  good.  The  case  was  distinguished  from 
Cole  v.  Cole,  79  Va.  251,  on  the  ground  that  in  that  case 
the  power  of  disposal  given  to  the  first  taker  was  absolute, 
which  necessarily  rendered  the  limitation  over  repugnant, 
and  void.1  And  in  Bowen  v.  Bowen,  87  Va.  438,  supra,  it 
was  said  that  the  case  at  bar  was  distinguishable  from  Johns 
v.  Johns,  supra,  and  Miller  v.  Potterfield,  by  the  fact  that 
the  power  of  disposal  in  the  two  latter  cases  was  not.  for  the 
sole  benefit  of  the  first  taker,  but  in  Johns  v.  Johns  for  the 
benefit  of  the  widow  and  her  children,  and  in  Miller  v.  Pot- 
terfield, not  only  for  the  benefit  of  the  widow,  but  of  William 
Garrett.  But  in  Johns  v.  Johns,  it  also  appeared  that  the 
disposal  conferred  on  the  widow  was  over  the  life  estate  only, 
as  has  been  stated  above.    See  §  243  (1). 

Smith  v.  Bell  has  been  questioned,  however  (see  49  Am. 
Dec.  118),  and  is  perhaps  against  the  weight  of  authority; 
and  it  can  only  be  upheld  by  magnifying  the  intent.     But 

1  Miller  v.  Potterfield. — Of  the  language  of  the  will  in  this 
case,  the  court  says  (quoting  the  part  beginning  with  the  words 
"and  also  to  make  such  disposition,"  etc.):  "This  language  re- 
strains and  qualifies  that  which  precedes  it,  and  confines,  as  it 
was  obviously  intended  to  confine,  the  power  of  disposal  to  the 
single  case  mentioned — that  is  to  say,  it  was  intended  the  widow 
should  have  the  use  of  the  property  for  life,  but  the  power  to 
dispose  of  it  she  was  not  to  have  unless  a  sale,  in  her  judgment, 
should  become  necessary  for  the  support  of  herself  and  Garrett. 
In  that  event,  and  in  that  event  only,  was  she  authorized  to  dis- 
pose of  the  corpus  of  the  estate."  And  see  Cresap  v.  Cresap,  34 
W.  Va.  310;  ante,  §  244,  note. 


§  248]  POWERS.  309 

it  has  never  been  overruled  (or  even  doubted)  by  the  Su- 
preme Court  of  the  United  States,  though  in  a  number  of 
cases  it  has  been  distinguished  on  the  facts.  See,  especially, 
Potter  v.  Couch,  141  U.  S.  296,  316;  Roberts  v.  Lewis,  153 
U.  S.  367,  378.  May  v.  Joynes  in  Virginia  and  Smith  v.  Bell 
in  the  Supreme  Court  of  the  United  States,  stand  at  the 
opposite  extremes,  and  each  is  an  exception  to  the  general 
rule.  The  tendency  now  in  the  United  States  is  to  sustain 
the  limitation  over,  if  possible,  in  a  case  where  property 
is  given  to  the  first  taker  with  a  power  of  disposal  super- 
added.1 

1  Smith  v.  Bell  Explained. — In  Potter  v.  Couch,  supra,  316,  it 
is  said  by  Gray,  J.:  "In  Smith  v.  Bell  the  general  doctrine  was 
not  denied;  and  the  decision  turned  upon  the  construction  of 
the  words  of  a  will  by  which  a  Virginia  testator  bequeathed  all 
of  his  personal  estate  (consisting  mostly  of  slaves)  to  his  wife, 
to  have  for  her  own  use  and  benefit  absolutely;  the  remainder 
of  the  said  estate,  after  her  decease,  to  be  for  the  use  of  his  son. 
This  was  held  to  give  the  son  a  vested  remainder,  upon  grounds 
summed  up  in  two  passages  of  the  opinion  by  Chief  Justice  Mar- 
shall as  follows:  'The  limitation  in  remainder  shows  that  in 
the  opinion  of  the  testator,  the  previous  words  had  given  only 
an  estate  for  life.  This  was  the  sense  in  which  he  used  them.' 
6  Pet.  76.  'The  limitation  to  the  son  on  the  death  of  the  wife  re- 
strains and  limits  the  preceding  words  so  as  to  confine  the  power 
of  absolute  disposition,  which  they  purport  to  confer,  of  the 
slaves,  to  such  a  disposition  of  them  as  may  be  made  by  a  per- 
son having  only  a  life  estate  in  them.'  6  Pet.  84."  And  in  Rob- 
erts v.  Lewis,  supra,  it  is  said  by  the  same  judge,  speaking  of 
Smith  v.  Bell:  "The  wife  had  made  no  conveyance  of  the  prop- 
erty; the  words  of  the  gift  over  were  the  technical  ones,  'the  re- 
mainder of  my  estate,'  appropriately  designating  the  whole  es- 
state  after  the  wife's  death;  and  the  court  distinctly  intimates 
that  if  the  will  were  construed  as  giving  the  wife  the  power  'to 
sell  or  consume  the  whole  personal  estate  during  her  life,'  a 
gift  over  of  'what  remains  at  her  death'  would  be  'totally  in- 
compatible' and  'void  for  uncertainty.'     6  Pet.  78." 


CHAPTEE  XIII. 


ESTATES    ON    CONDITION. 


§  249.  Nature  and  Classification  of  Conditions — Precedent 
and  Subsequent. — The  words  precedent  and  subsequent,  as 
applied  to  conditions  annexed  to  estates  in  land,  have  refer- 
ence to  the  time  when  the  estate  vests.  When  the  condi- 
tion is  precedent,  the  estate  cannot  vest  until  the  condition 
is  performed;  when  the  condition  is  subsequent,  the  estate 
vests  at  once,  but  it  is  liable  to  be  divested  if  the  condition  is 
not  performed.  In  the  one  case  the  performance  of  the  con- 
dition must  precede  the  vesting  of  the  estate,  and  the  con- 
dition is  therefore  called  precedent;  in  the  other  the  non- 
performance of  the  condition  follows  the  vesting  of  the  estate, 
and  the  condition  is  therefore  called  subsequent. 

It  will  be  seen  that  a  condition  precedent  is  in  its  nature 
creative,  since  at  the  time  of  the  grant  no  estate  vests  in  the 
intended  beneficiary.  The  conveyance  is  as  yet  inchoate,  but 
on  the  happening  of  a  certain  event,  or  the  performance  of  a 
certain  act,  the  estate  arises  and  takes  effect  in  the  grantee. 
On  the  other  hand,  the  condition  subsequent  is  in  its  nature 
destructive.  Under  such  a  condition,  the  estate  is  already 
vested  in  the  grantee,  but  on  the  happening  of  a  certain  event 
(perhaps  some  default  on  his  part)  the  estate  may,  at  the 
will  of  the  grantor,  be  divested  and  destroyed.1 

1  Examples  of  Conditions  Precedent. — In  2  Bl.  Com.  (154),  it 
is  said  of  conditions:  "Precedent  are  such  as  must  happen  or  be 
performed  before  the  estate  can  vest  or  be  enlarged.  . 
Thus,  if  an  estate  for  life  be  limited  to  A  upon  his  marriage 
with  B,  the  marriage  is  a  precedent  condition;  and  till  that  hap- 
pens, no  estate  is  vested  in  A.  Or  if  a  man  grants  his  lessee 
for  years  that  upon  the  payment  of  a  hundred  marks  within  the 

310 


§  249]  ESTATES    ON    CONDITION.  311 

The  distinction  between  conditions  precedent  and  subse- 
quent is  thus  stated  by  Magruder,  C.  J.,  in  Star  Brewery  Co. 
v.  Primas,  163  111.  652  (45  N".  E.  145)  :  "A  precedent  con- 
dition is  one  which  must  take  place  before  the  estate  can  vest 
or  be  enlarged;  and  if  land  is  conveyed  upon  a  precedent 
condition,  the  title  will  not  pass  until  the  condition  is  per- 
formed. A  subsequent  condition  is  one  which  operates  upon 
an  estate  already  created  and  vested,  and  renders  it  liable  to 
be  defeated.  A  deed  upon  condition  subsequent  conveys  the 
fee  when  it  is  executed,  but  the  fee  passes  subject  to  the  con- 
tingency of  being  defeated  as  provided  in  the  condition,  the 
grantor  having  the  power  of  reentry  upon  condition  broken; 
and  if  there  is  a  breach  of  the  condition,  the  estate  continues 
in  the  grantee  until  defeated  by  actual  entry.  Whether  a 
condition  is  precedent  or  subsequent  depends  on  the  inten- 
tion of  the  parties."  See  2  Tho.  Coke,  1,  n.  A. ;  2  Bl.  Com. 
(154);  1  Shepp.  Touchstone  (117);  1  Prest.  Estates  (41); 

term  he  shall  have  the  fee,  this  also  is  a  condition  precedent, 
and  the  fee-simple  passeth  not  until  the  hundred  marks  be  paid." 

In  Reuff  v.  Coleman,  30  W.  Va.  171  (3  S.  E.  597),  it  was  held 
that  a  legacy  given  as  follows  was  contingent  on  two  conditions 
precedent:  "If  the  girl,  Mary  Cruver,  remain  with  my  family 
until  she  attain  the  age  of  21  years,  and  continue  to  conduct  her- 
self as  she  has  heretofore  done,  then  my  will  is  that  my  executor 
pay  to  her  upon  her  so  coming  of  age  the  sum  of  $300. 

In  Markham  v.  Huff or d,  123  Mich.  505  (81  Am.  St.  Rep.  22; 
48  L.  R.  A.  580),  the  following  bequest  was  held  to  be  on  a  con- 
dition precedent:  "To  Almon  L.  Markham,  the  son  of  my  daugh- 
ter, Julia  J.  Markham,  deceased,  I  give  and  bequeath  the  sum 
of  $500,  to  be  paid  to  him  at  the  expiration  of  two  years  from 
the  date  of  my  demise;  provided  that  he  shall  be  deemed  a  re- 
formed man,  in  the  judgment  of  the  executors  of  this  will."  And 
see  Haioke  v.  Euyart,  30  Neb.  149   (27  Am.  St.  Rep.  391). 

For  miscellaneous  examples  of  conditions  precedent,  see  Rans- 
dell  v.  Ransdell  172  111.  439  (43  L.  R.  A.  526) ;  Eeffer  v.  Grayson, 
76  Va.  517;  Phillips  v.  Ferguson,  85  Va.  509;  Vaughan  v.  Vaughan, 
97  Va.  322;  Jones  v.  Chesapeake,  &c,  R.  Co.,  14  W.  Va.  514;  and 
especially  Markham  v.  Hufford,  supra,  where  numerous  cases  are 
collected. 


312  REAL    PROPERTY.  [Chap.  13 

2  Tuck.  Com.  (88) ;  1  Lomax  Dig.  (262)  ;  2  Min.  Ins.  (4th 
ed.),  265-6;  6  Am.  &  Eng.  Ency.  Law  (2d  ed.),  500;  Cross 
v.  Carson  (Ind.)  44  Am.  Dec.  742,  and  note;  Raley  v.  Uma- 
tilla County,  15  Or.  172  (3  Am.  St.  Rep.  142)  ;  Ecroyd  v. 
Coggeshall  (E.  I.),  79  Am.  St.  Eep.  741,  and  note;  Lewis  v. 
Henry,  28  Gratt.  192,  200.1 

§  250.  Conditions  Precedent  and  Subsequent ;  How  Distin- 
guished.— In  Finlay  v.  King,  3  Pet.  346,  it  is  said  by  Mar- 
shall, C.  J.  (at  p.  374)  :  "It  was  admitted  in  argument,  and 
is  certainly  well  settled,  that  there  are  no  technical  and  ap- 
propriate words  which  always  determine  whether  a  devise 
be  on  a  condition  precedent  or  subsequent.  The  same  words 
have  been  determined  differently;  and  the  question  is  always 
a  question  of  intention.  If  the  language  of  the  particular 
clause,  or  of  the  whole  will,  shows  that  the  act  on  which 
the  estate  depends  must  be  performed  before  the  estate  can 
vest,  the  condition  is  of  course  precedent;  and  unless  it  is 
performed,  the  devisee  can  take  nothing.  If,  on  the  con- 
trary, the  act  does  not  necessarily  precede  the  vesting  of  the 

1  Legacies  Dependent  on  a  Condition  Precedent. — In  deciding 
whether  a  legacy  is  vested  or  contingent,  the  rule  is  that  when  a 
legacy  is  given  to  a  person  to  be  paid  at  a  future  time,  it  vests 
immediately  on  the  testator's  death;  but  when  it  is  not  given 
until  a  future  time,  or  when  the  time  is  annexed  not  to  the  pay- 
ment only,  but  to  the  gift  itself,  the  legacy  does  not  vest  until 
that  time.  Hence,  "if  the  legacies  are  given  at  21,  or  if,  when,  in 
case,  or  provided  the  legatee  attains  21,  or  any  other  future 
definite  period,  these  expressions  annex  the  time  to  the  sub- 
stance of  the  legacy,  and  make  the  legatee's  right  to  it  depend 
on  his  being  alive  at  the  time  fixed  for  payment.  Consequently, 
if  the  legatee  happens  to  die  before  that  period  arrives,  his  per- 
sonal representative  will  not  be  entitled  to  the  legacy."  Major 
v.  Major,  32  Gratt.  819,  823;  Sellers  v.  Reed,  88  Va.  377;  Jones  v. 
Habersham,  107  U.  S.  174;  Goebel  v.  Wolf,  113  N.  Y.  405  (10  Am. 
St.  Rep.  404,  and  note);  Ducker  v.  Burnham,  146  111.  9  (37  Am. 
St.  Rep.  135,  and  note);  Patton  v.  Ludington,  103  Wis.  629  (74 
Am.  St.  Rep.  910);  Eldred  v.  Meek,  183  111.  26  (75  Am.  St. 
Rep.  86). 


§§  249, 250]  ESTATES    ON    CONDITION.  313 

estate,  but  may  accompany  or  follow  it,  if  this  may  be  col- 
lected from  the  whole  will,  the  condition  is  subsequent." 

The  law  as  thus  laid  down  has  met  with  general  approval, 
and  is  applicable  to  a  deed  as  well  as  to  a  devise.  Nicoll  v. 
New  York,  &c,  R.  Co.  12  N.  Y.  121;  Bell  County  v.  Alex- 
ander, 22  Texas  350  (73  Am.  Dec.  268);  In  re  Stickney's 
Will,  85  Md.  79  (60  Am.  St.  Eep.  308);  MarJeham  v.  Huf- 
ford  (Mich.)  82  N.  W.  222  (48  L.  E.  A.  580) ;  Alexander 
v.  Alexander  (Mo.)  57  S.  W.  110;  Lewis  v.  Henry,  28  Gratt. 
202;  Burdis  v.  Burdis,  96  Va.  81  (70  Am.  St.  Eep.  824); 
Jones  v.  Chesapeake,  &c,  R.  Co.  14  W.  Va.  523;  Reuff  v. 
Coleman,  30  W.  Va.  171. 

Two  examples  will  illustrate  the  reasoning  by  which  a  con- 
dition may  be  found  subsequent  in  order  to  effectuate  intent. 

In  Nicoll  v.  New  York,  &c,  R.  Co.,  12  N.  Y.  121,  it  is  said 
(after  adopting  the  test  in  Finlay  v.  King,  supra) :  "In  this 
case  it  was  evidently  the  design  of  the  parties  that  the  estate 
should  vest  at  once,  so  that  the  grantee  might  proceed  im- 
mediately with  the  construction  of  the  road ;  otherwise  a  con- 
dition that  it  should  be  completed  within  a  given  time,  or 
ever  completed,  would  be  impossible.  From  the  character  of 
the  condition  it  could  not  be  a  condition  precedent.  Posses- 
sion and  control  of  the  land  must  necessarily  accompany  the 
construction  and  precede  the  completion  of  the  road.  The 
grant  is  not  made  to  take  effect  on  the  happening  of  a  certain 
event,  but  in  prcesenti,  and  liable  to  be  divested  by  the 
grantee's  failure  to  perform  the  condition." 

In  Morse  v.  Hayden,  82  Me.  227  (19  Atl.  442)  it  is  said: 
"Conditions  have  no  idiom.  Whether  precedent  or  subse- 
quent is  a  question  purely  of  intention  to  be  gathered  from 
the  whole  language  adopted.  Such  conditions  of  support  and 
maintenance  in  wills  ["on  condition  that  my  wife  (the  de- 
devisee)  shall  provide  and  maintain  our  son  until  he  shall 
attain  his  majority"],  without  any  language  charging  the 
property  with  the  performance  of  the  conditions,  or  in  deeds 
conveying  farms,  would  seem  to  be  conditions  subsequent  be- 


314  REAL    PROPERTY.  [Chap.  13 

cause  of  the  implication  that  the  devisees  or  grantees  are  to 
have  possession  and  control  of  the  premises  for  the  purpose  of 
fulfilling  the  conditions."  And  see  Lewis  v.  Lewis  (Conn.), 
51  Atl.  854. 

It  may  be  added  that  a  condition  precedent  enters  into  the 
very  limitation  of  an  estate,  which  it  renders  contingent, 
whereas,  a  condition  subsequent  is  superimposed  upon  a  pre- 
vious limitation,  which  it  renders  defeasible.  Thus  whether 
a  remainder  is  vested  or  contingent  may  depend  on  whether 
a  condition  is  precedent  or  subsequent,  and  this  will  depend 
upon  whether  the  condition  is  "incorporated  into  the  gift  to 
or  description  of  the  remainderman,  or  is  added  as  a  separate 
clause  after  words  which  have  already  given  a  vested  inter- 
est." 20  Am.  &  Eng.  Ency.  Law  850;  Blancliard  v.  Blancli- 
ard, 1  Allen  (Mass.)  223;  Dueler  v.  Burnham,  146  111.  9 
(37  Am.  St.  Eep.)  135,  143.  And  see  New  Orleans  v. 
Texas,  &c.,  R.  Co.  171  U.  S.  312,  334,  where  it  is  said  that 
the  suspensive  condition  under  the  Louisiana  Code  is  the 
equivalent  of  the  condition  precedent  of  common  law.1 

1  Remainders  Dependent  on  Condition  Precedent  or  Subse- 
quent.— In  deciding  on  the  character  of  a  remainder,  it  may  be 
necessary  to  consider  not  only  the  time  of  its  vesting,  but  also 
whether,  though  vesting  at  a  certain  time,  it  does  so  subject  to 
be  divested  by  a  condition  subsequent.  Thus,  in  a  deyise  "To 
my  wife  for  life,  and  at  her  death,  to  my  surviving  children,"  it 
has  been  seen  (§  203,  supra)  that  the  word  "surviving"  refers 
to  the  death  of  the  testator,  unless  the  will  manifests  a  contrary 
intent;  and  hence  the  children  living  at  the  death  of  the  testator 
take  vested  estates.  But,  if  there  are  words  of  contingency,  such 
as,  "if  they  shall  be  living  at  her  death,"  or,  "to  such  of  them 
as  shall  be  living  at  her  death,"  these  are  conditions  precedent, 
and  limit  the  remainder  to  such  of  the  children  as  shall  survive 
their  mother.  Blancliard  v.  Blancliard,  1  Allen  (Mass.)  223; 
Cheatham  v.  Goioer,  94  Vs.  383;  Vashon  v.  Vashon,  98  Va.  170. 

As  is  said  in  Ducker  v.  Burnham,  146  111.  9  (37  Am.  St.  Rep.  135, 
145):  "When  the  devise  is  to  the  testator's  wife  for  life,  and 
at  her  death  to  such  of  his  children  as  shall  then  be  living,  the 
benefit  does  not  purport  to  be  conferred  on  the  children  as  chil- 
dren, or  individuals  named,  but  as  survivors,  which  indicates  that 


§§  250, 251]  ESTATES    ON    CONDITION.  315 

§251.  Condition  Precedent  or  Subsequent;  Which  Fa- 
vored in  Law. — Here  it  is  necessary  to  make  a  discrimination. 

1.  In  deciding  whether  the  condition  is  precedent  or  sub- 
sequent. 

It  is  a  maxim  that  the  law  favors  the  vesting  of  estates, 
in  order  that  the  land  may  not  he  "in  a  state  of  contin- 
gency." Hence  when  the  question  is  whether  certain  words 
in  a  grant  or  devise  create  a  condition  precedent  or  subse- 
quent, the  law  leans  to  the  latter  construction ;  and  the  estate 
is  deemed,  if  possible,  to  be  vested  in  the  grantee  or  devisee 
immediately,  subject  to  be  divested  by  the  breach  of  the  con- 
dition. A  similar  doctrine  is  applicable  to  remainders,  and 
in  doubtful  cases  they  are  construed  as  vested  rather  than 
contingent.  And  the  law  is  the  same  as  to  legacies.  See  on 
the  whole  subject,  Pennington  v.  Pennington,  70  Md.  418 ; 
In  re  Stickley's  Will,  85  Md.  79  (60  Am.  St.  Eep.  308)  ; 
Sellers  v.  Sellers,  88  Va.  380;  Patton  v.  Ludington,  103 
Wis.  629  (74  Am.  St.  Eep.  910)  ;  Blanchard  v.  Blanchard, 
1  Allen  (Mass.)  223;  Chapman  v.  Chapman,  90  Va.  409; 
Crews  v.  Hatcher,  91  Va.  378;  Vashon  v.  Vashon,  98  Va. 
170;  Major  v.  Major,  32  Gratt.  823;  Jones  v.  Habersham, 

an  immediate  vesting  is  not  intended."    See  Thomas  v.  Thomas, 
149  Mo.  426  (73  Am.  St.  Rep.  405,  and  note). 

But,  though  "an  immediate  vesting"  is  intended,  it  may  never- 
theless be  upon  condition  subsequent.  Thus  in  Ducker  v.  Burn- 
ham,  ubi  supra,  the  court  goes  on  to  say:  "But  when  the  devise 
is  to  the  wife  for  life,  with  remainder  to  certain  named  children, 
and  with  a  subsequent  provision  that  if  any  of  such  named  chil- 
dren die  before  the  wife,  then  the  property  is  to  be  equally  di- 
vided between  the  survivors,  the  devise  of  the  remainder  is  to 
certain  definitely  specified  and  named  individuals,  who,  as  re- 
maindermen already  answer  the  description  by  which  they  are  to 
take,  and  there  is  no  obstacle  to  supposing  an  immediate  vesting 
to  have  been  intended."  And  see  p.  194,  supra,  note,  for  cases 
in  which  remainders  have  been  held,  not  contingent  upon  a  con- 
dition precedent,  but  vested  estates  upon  condition  subsequent, 
liable  to  be  divested  by  the  happening  of  the  contingency.  See 
also  Waring  v.  Waring,  96  Va.  641. 


316  REAL    PROPERTY.  [Chap.  13 

107  U.  S.  174;  Dueler  v.  Burnham,  146  111.  9  (37  Am.  St. 
Eep.  135);  Eldred  v.  Meek,  183  111.  26  (75  Am.  St.  Eep. 
86). * 

1  Examples  of  Conditions  Construed  as  Subsequent. — In  2 
Bl.  Com.  (154)  it  is  said:  "But  if  a  man  grants  an  estate  in  fee- 
simple,  reserving  to  himself  and  his  heirs  a  certain  rent,  and 
that  if  such  rent  is  not  paid  at  the  times  limited,  it  shall  be 
lawful  for  him  and  his  heirs  to  reenter,  and  avoid  the  estate;  in 
this  case  the  grantee  and  his  heirs  have  [rather  the  grantee  has] 
an  estate  upon  condition  subsequent,  which  is  defeasible  if  the 
condition  be  not  strictly  performed."  For  a  modern  instance 
of  this  kind  of  grant,  see  Willis  v.  Com.,  97  Va.  667.  See  also 
Drummond  v.  Richards,  2  Munf.   (Va.)   337. 

In  Finlay  v.  King,  3  Peters  346,  the  words  of  the  will  were: 
"In  case  of  having  no  children,  I  then  leave  and  bequeath  all  my 
real  estate  at  the  death  of  my  wife  to  William  King,  son  of  brother 
James  King,  on  condition  of  his  marrying  a  daughter  of  William 
Trigg  and  my  niece,  Rachel,"  etc.  Marshall,  C.  J.,  applied  the 
test  laid  down  above  in  §  250,  and  held  the  condition  to  be  sub- 
sequent.    He  said   (p.  375): 

"In  the  case  under  consideration,  the  testator  does  not  in  terms 
give  his  real  estate  to  William  King  on  his  marrying  the  daugh- 
ter of  William  and  Rachel  Tigg  [as  to  this  see  §  250,  note],  but 
at  the  death  of  his,  the  testator's  wife,  on  condition  of  his  mar- 
rying a  daughter  of  William  and  Rachel  Trigg."  And,  after  an 
elaborate  argument  based  on  the  presumed  intent  of  the  testator, 
he  adds  (p.  376):  "It  is  a  general  rule  that  a  devise  in  words 
of  the  present  time,  as  I  give  to  A  my  lands  in  B,  imports,  if  no 
contrary  intent  appears,  an  immediate  interest  which  vests  in 
the  devisee  on  the  death  of  the  testator.  It  is  also  a  general 
rule  that  if  an  estate  be  given  on  a  condition,  for  the  perform- 
ance of  which  no  time  is  limited,  the  devisee  has  his  life  for 
performance.  The  result  of  these  two  principles  seems  to  be  that 
a  devise  to  A  on  condition  that  he  shall  marry  B,  if  uncontrolled 
by  other  words,  takes  effect  immediately;  and  the  devisee  per- 
forms the  condition  if  he  marry  B  at  any  time  during  his  life. 
The  condition  is  subsequent." 

In  Burdis  v.  Burdis,  96  Va.  81  (70  Am.  St.  Rep.  825),  the  words 
of  the  will  were:  "I  leave  and  bequeath  to  my  wife,  Martha  A. 
Burdis,  the  homestead  and  five  acres  around  the  house  during 
her  natural  life,  with  the  understanding  that  my  son,  Albert, 
will  support  and  take  care  of  her,  and  at  her  death  said  home- 


§  251]  ESTATES    ON    CONDITION.  317 

2.  In  dealing  with  the  condition,  after  its  character  as  pre- 
cedent or  subsequent  has  been  ascertained.  In  dealing  with 
a  condition  precedent,  when  ascertained  to  exist,  the  law  may 
be  said  to  favor  the  condition,  inasmuch  as  it  must  be  punc- 
tually and  precisely  performed,  or  the  contingent  estate  can 
never  vest.  And  even  if  the  condition  be  unlawful  or  im- 
possible, yet,  if  precedent,  the  estate  can  never  vest,  as  the 
contingency  cannot  arise,  or  the  condition  be  lawfully  per- 
formed. iSTor  will  equity  interpose,  and  grant  relief  for  the 
non-performance  of  a  condition  precedent.  Davis  V.  Gray, 
16  Wall  203,  229;  Burdis  v.  Burdis,  96  Va.  81  (70  Am.  St. 
Eep.  825). 

stead  and  land  shall  return  to  my  son,  Albert,  as  compensation 
therefor."  The  court  (Riely,  J.,  delivering  the  opinion)  adopted 
the  test  laid  down  in  Finlay  v.  King  (see  §  250,  supra),  and  held 
the  condition  to  be  subsequent,  and  disposed  of  the  case  as  fol- 
lows: 

"But  if  the  language  referred  to  be  in  legal  effect  a  condition  of 
the  devise  to  the  son,  there  is  nothing  in  the  will  that  makes 
the  support  and  care  of  the  wife  of  the  testator  by  their  son  Al- 
bert necessarily  precede  the  vesting  in  him  of  the  estate  in  re- 
mainder, but  much  to  indicate  the  contrary.  The  obligation  re- 
lied on  as  a  condition  precedent  was  not  a  single  act,  to  be  done 
or  omitted  at  once,  but  a  continuing  condition,  which  might  run 
through  a  long  series  of  years,  and  require  the  performance  of 
many  acts.  .  .  .  There  is  nothing  in  the  will  to  indicate  that 
the  testator  intended  the  devise  of  the  son  to  remain  in  'a  state 
of  contingency'  during  the  many  years  that  he  might  have  the 
support  and  care  of  his  mother,  and  it  would  be  unreasonable  to 
believe,  without  an  express  direction  or  plain  implication  in  the 
will  to  that  effect,  that  he  so  intended.  .  .  .  Taking  the  whole 
will  together,  as  should  be  done,  we  are  of  the  opinion  that  the 
condition  upon  which  the  testator's  son,  Albert,  was  to  take  the 
estate  was  a  condition  subsequent,  and  not  a  condition  precedent; 
and  its  performance  having  been  rendered  impossible  by  the 
act  of  God,  by  the  death  of  the  wife  in  the  lifetime  of  the  testator, 
Albert  holds  the  estate  by  an  absolute  title,  as  if  the  testator  had 
attached  no  condition  to  the  devise." 

The  court  cited  Nunnery  v.  Carter,  5  Jones,  Eq.  (S.  C),  370  (78 
Am.  Dec.  231).  See  in  accord,  Parker  v.  Parker,  123  Mass.  584; 
Morse  v.  Hayden,  82  Me.  227  (19  Atl.  443). 


318  REAL    PROPERTY.  [Chap.  13 

But  when  the  condition  is  found  to  be  subsequent,  the  law 
then  declares  that  the  estate,  already  vested,  shall,  if  possible, 
remain  vested,  i.  e.,  shall  not  be  forfeited;  and  hence  the 
doctrine  that  conditions  subsequent,  "as  they  go  in  destruc- 
tion and  defeasance  of  estates  are  odious  in  law,  and  shall  be 
taken  strictly."  That  is  to  say,  the  terms  of  a  condition  sub- 
sequent shall  be  construed  strictly,  against  the  grantor  or  de- 
visor imposing  it,  in  deciding  what  is  required  to  be  done  or 
forborne  by  the  grantee  or  devisee ;  and  as  to  what  is  required, 
a  substantial  performance  will  suffice  to  save  the  estate,  and 
only  a  substantial  failure  to  perform  will  work  a  forfeiture. 
Maddox  v.  Adair  (Texas),  66  S.  W.  811.  And  the  disfavor 
in  which  conditions  subsequent  (as  destroyers  of  estates)  are 
held  may  be  seen  in  the  doctrine  as  to  the  persons  to  whom 
they  may  be  reserved,  and  by  whom  they  may  be  enforced; 
in  the  doctrine  of  equitable  relief  against  forfeiture  when 
compensation  may  be  made;  and  in  the  fact  that  an  impos- 
sible or  illegal  condition  is  void,  and  the  grantee  or  devisee 
takes  the  estate  free  from  the  condition,  the  estate  thus  be- 
coming absolute  and  indefeasible.  Jackson  v.  Schutz,  18 
Johns.  174  (9  Am.  Dec.  195,  and  note  at  p.  202) ;  Coppage  v. 
Alexander,  2  B.  Monroe,  313  (38  Am.  Dec.  153,  and  note  at 
p.  160) ;  Cross  v.  Carson,  8  Black.  (Ind.)  138  (44  Am.  Dec. 
742,  and  note  at  p.  744) ;  Taylor  v.  Sutton,  15  Ga.  103  (60 
Am.  Dec.  682) ;  Thompson  v.  Thompson,  9  Ind.  323  (68  Am. 
Dec.  638,  645) ;  Emerson  v.  Simpson,  43  N.  H.  475  (80  Am. 
Dec.  184,  s.  c.  82  Am.  Dec.  168) ;  Rawson  v.  School  District, 
7  Allen  (Mass.)  125  (83  Am.  Dec.  670);  Kilpatrick  v. 
Mayor  of  Baltimore,  81  Md.  179  (48  Am.  St.  Eep.  509) ; 
Faith  v.  Boivles,  86  Md.  13  (63  Am.  St.  Eep.  489) ;  Lewis  v. 
Henry,  28  Graft.  192,  203;  Burdis  v.  Burdis,  96  Va.  81  (70 
Am.  St.  Eep.  825,  and  note). 

§  252.    Words  Proper  for  a   Condition   Subsequent. — We 

have  seen  that  there  are  no  technical  words  to  distinguish 
between  conditions  precedent  and  conditions  subsequent;  and 
that  the  same  words  may  indifferently  make  either,  according 


§§  251, 252]  ESTATES    ON    CONDITION.  319 

to  the  intent  of  the  person  who  creates  the  condition.  But 
though  words  of  contingency  do  not  create  a  condition  prece- 
dent, it  does  not  follow  that  they  create  a  condition  subse- 
quent. As  is  said  by  Morton,  J.,  in  Clapp  v.  Wilder,  176 
Mass.  342 :  "In  numerous  cases,  for  one  reason  or  another, 
words  apt  to  create  a  condition  at  common  law  in  a  deed  have 
been  interpreted  as  meaning  something  else — limitations,  cov- 
enants, restrictions,  easements,  servitudes,  trusts — because  it 
was  thought  that  such  a  construction  would  best  conform  to 
and  carry  out  the  intention  of  the  parties." 

While  this  is  the  case,  and  manifest  intention  may  negative 
condition  altogether,  it  is  important  to  inquire  what  words 
are  "apt  to  create  a  condition  at  common  law,"  and  have 
prima  facie,  at  least  that  effect.  It  is  to  be  noticed  that  in 
the  discussion  of  these  words  the  books  invariably  contem- 
plate conditions  subsequent,  though  the  same  words  might  in 
a  proper  case  create  a  condition  precedent. 

It  is  laid  down  by  Littleton  (2  Tho.  Co.  4,  5)  that  the  fol- 
lowing words,  "by  virtue  of  themselves,  without  any  more 
saying,"  make  an  estate  upon  condition  [i.  e.,  upon  condition 
subsequent],  viz.,  "on  condition"  (sub  conditione),  "pro- 
vided" (proviso),  and  "so  that"  (ita  quod).  But  Littleton 
points  out  a  diversity  between  the  words  aforesaid  and  other 
words  of  condition,  such  as  "if  it  happen,"  etc.  (si  contingat, 
etc.)  :  "For  these  words,  si  contingat,  etc.,  are  nought  worth 
to  such  a  condition  unless  it  [sic]  hath  these  words  following, 
'That  it  shall  be  lawful  for  the  feoffor  and  his  heirs  to  enter,' 
etc.  But  in  the  cases  aforesaid  it  is  not  necessary  by  the  law 
to  put  such  clause,  viz.,  that  the  feoffor  and  his  heirs  may 
enter,  etc.,  because  they  may  do  this  by  force  of  the  words 
aforesaid,  for  that  they  contain  in  themselves  a  condition, 
viz.,  that  the  feoffor  and  his  heirs  may  enter,  etc."1 

1  Words  Held  Sufficient  to  Create  a  Condition  Subsequent. — 
The  following  words  have  been  held  sufficient  to  create  a  tech- 
nical common  law  condition  subsequent,  rendering  the  estate 
liable  to  be  divested  for  its  breach:      "Provided,  however,  that 


320  REAL    PROPERTY.  [Chap.  13 

The  same  doctrine  is  laid  down  in  Sheppard's  Touchstone 
(p.  121)  as  follows:  "Know,  therefore,  that  for  the  most  part 
conditions  have  conditional  words  in  their  frontispiece,  and 
do  begin  therewith;  and  that  amongst  these  words  there  are 
three  words  that  are  most  proper,  which  in  and  of  their  own 
nature  and  efficacy,  without  any  addition  of  other  words  of 
reentry  in  the  conclusion  of  the  condition,  do  make  the  estate 

this  conveyance  is  on  the  condition,"  etc.  (Gray  v.  Blanchard,  8 
Pick.  (Mass.)  283);  "And  this  conveyance  is  upon  the  express 
condition,"  etc.  (Clapp  v.  Wilder,  176  Mass.  332);  "The  said  land 
being  conveyed  on  the  express  understanding  and  condition," 
etc.  (Mead  v.  Ballard,  7  Wall.  290.  And  see  Hale  v.  Finch, 
104  U.  S.  261) ;  "And  if  said  second  party  shall  fail  to  build  said 
railroad,  etc.,  then  the  property  hereby  sold  as  aforesaid  is  to 
revert  to  the  said  first  party,  and  reinvest  in  them  the  same  as 
they  now  hold  the  same."  (Schlesinger  v.  Kansas  City,  do.,  R.  Co., 
152  U.  S.  444.  And  see  Preston  v.  Bosworth,  158  Ind.  458;  74 
Am.  St.  Rep.  313.  Shun  v.  Claghorn,  69  Vt.  45;  37  Atl.  236. 
Houston,  'do.,  R.  Co.  v.  Compress  Co.  (Texas),  56  S.  W.  367); 
"In  case  such  pass  [an  annual  pass  over  the  company's  railway 
during  the  grantor's  life]  is  not  given,  or  if  it  shall  be  re- 
voked, then  said  deed  to  be  void"  (Ruddick  v.  St.  Louis,  do.  R.  Co., 
116  Mo.  25;  38  Am.  St.  Rep.  570);  "In  case  of  breach  of  this 
covenant  [not  to  erect  buildings  which  would  obstruct  the  grant- 
or's view]  the  said  premises  to  be  forfeited"  (Gibert  v.  Peteler, 
38  N.  Y.  165;  97  Am.  Dec.  r<85) ;  "If  the  company  shall  refuse  and 
neglect  [to  erect  certain  buildings,  etc.]  it  shall  be  lawful  for 
the  parties  of  the  first  part,  their  heirs,  executors,  administrators, 
or  assigns  to  reenter,  repossess,  and  enjoy  the  said  lands  and 
premises  as  in  their  former  estate"  (Bouvier  v.  Baltimore,  dc, 
R.  Co.   (N.  J.),  47  Atl.  772. 

The  above  examples  show  that  it  is  sufficient  in  order  to  create 
a  condition  (1)  to  use  the  technical  words  "on  condition,"  "pro- 
vided," "so  that,"  which  of  themselves,  in  the  absence  of  a  con- 
trary intent,  confer,  on  breach,  the  right  of  reentry  and  enforce- 
ment of  forfeiture;  or  (2)  to  use  words  indicative  of  the  con- 
sequences which  flow  from  a  breach  of  condition,  from  which  the 
intent  to  create  a  condition  is  implied,  such  as  that,  on  the  de- 
fault of  the  grantee,  the  estate  granted  shall  be  void,  or  shall 
be  forfeited,  or  shall  revert  to  the  grantor,  or  that  the  grantor 
may  reenter,  etc. 


§§252-253]  ESTATES    ON    CONDITION.  321 

conditional,  as  proviso,  ita  quod,  and  sub  conditione.  .  .  . 
But  there  are  other  words,  as  Si,  si  contingat,  and  the  like, 
that  will  make  an  estate  conditional  also ;  but  then  they  must 
have  other  words  joined  with  them,  and  added  to  them  in  the 
close  of  the  condition;  as  that  then  the  grantor  shall  reenter, 
or  that  then  the  estate  shall  be  void,  or  the  like." 

In  accord  with  the  law  as  thus  laid  down  by  Littleton  and 
in  the  Touchstone,  see  2  Min.  Ins.  (4th  ed.)  492;  6  Am.  & 
Eng.  Ency.  Law  (2d  ed.)  501,  note;  Raivson  v.  School  Dis- 
trict, 7  Allen  (Mass.)  125  (83  Am.  Dec.  670)  ;  Brown  v. 
Caldwell,  23  W.  Va.  187;  Baley  v.  Umatilla  County,  15  Or. 
142  (3  Am.  St.  Rep.  142)  ;  Clapp  v.  Wilder,  176  Mass.  332; 
Papst  v.  Hamilton  (Cal.)  66  Pac.  10. 

§  253.  Condition  Subsequent  Distinguished  from  a  Limi- 
tation.— A  condition  subsequent  must  be  distinguished  from 
a  limitation,  which  is  not  a  condition  at  all,  although  it  is 
called  by  Littleton  a  "condition  in  law."  2  Tho.  Co.  (120). 
The  only  resemblance  between  a  condition  subsequent  and 
a  limitation  is  that  each  may  so  operate  as  to  put  an  end  to 
an  estate ;  but  the  mode  of  operation  is  entirely  different.  "A 
limitation  will  necessaril}r  determine  the  estate;  a  condition 
may  defeat  an  estate."  1  Shepp.  Touch.  (117)  by  Preston. 
As  this  subject  has  been  rendered  obscure  by  Littleton's  un- 
fortunate nomenclature,  it  may  be  well  to  go  into  it  at  some 
length.1 

1  Limitation  or  Condition  Subsequent. — The  words  proper  for 
a  limitation  are  stated  by  Coke  to  be  Bum,  donee,  durante,  tam- 
diu,  etc.,  signifying  "until,"  "during,"  "whilst,"  "so  long  as,"  etc. 
2  Tho.  Co.  (121).  Blackstone's  illustrations  are:  "As  when  land 
is  granted  to  a  man  so  long  as  he  is  parson  of  Dale,  or  while  he 
continues  unmarried,  or  until  out  of  the  rents  and  profits  he 
shall  have  made  £500,  and  the  like."     2  Bl.  Com.  (155). 

In  Atlanta,  d-c.,  R.  Co.  v.  Jackson,  108  Ga.  634  (34  S.  E.  184),  the 
court  approves  this  language  taken  from  2  Washburn  on  Real 
Property  (5th  ed.),  p.  27:  "The  only  general  rule,  perhaps,  in 
determining  whether  words  are  words  of  condition  or  limitation 
is  that  where  they  circumscribe  the  continuance  of  the  estate, 
and  mark  the  period  which  is  to  determine  it,  they  are  words  of 

21 


322  REAL    PROPERTY.  [Chap.  13 

Upon  every  grant  of  an  estate  there  is  a  limitation,  express 
or  implied,  in  order  to  mark  out  and  define  the  measure  of 
the  estate,  i.  e.,  the  length  of  time  it  is  to  continue.  Accord- 
ingly, certain  words  used  for  this  purpose  are  called  words 
of  limitation,  e.  g.,  "heirs,"  "heirs  of  the  body,"  etc.  (See 
§§  35,  192,  supra.)  Now  if  an  estate  is  granted  to  A  for  21 
years,  or  to  A  for  life,  or  to  A  and  the  heirs  of  his  body,  and 
nothing  more  is  said,  it  is  clear  that  there  is  a  limitation,  and 
a  limitation  only;  and  it  could  hardly  be  imagined  that  the 
fact  that  the  estate  is  to  end  when  the  years  elapse,  or  the 
grantee  dies,  or  dies  without  issue,  constitutes  these  events 
conditions,  as  if  the  grantor  should  say,  "I  give  you  the  land 
for  life,  on  condition  you  do  not  die !"    There  is  no  condition. 

limitation;  when  they  render  the  estate  liable  to  be  defeated, 
in  case  the  event  expressed  should  arise  before  the  determination 
of  the  estate,  they  are  words  of  condition.  .  .  .  The  distinc- 
tion between  condition  and  limitation  is  that  the  latter  determines 
the  estate  of  itself;  the  former  to  have  that  effect  requires  some 
act  of  election  on  the  part  of  him  or  his  heirs  in  whose  favor 
the  condition  is  created." 

In  Smith  v.  Smith,  23  Wis.  176  (99  Am.  Dec.  153),  the  follow- 
ing extract  is  made  from  the  editor's  note  to  Greenleaf s  edition 
of  Cruise's  Digest  on  Real  Property:  "A  condition  is  something 
inserted  for  the  benefit  of  the  grantor,  giving  him  the  power,  on 
default  of  performance,  to  destroy  the  estate  if  he  will,  and 
revest  the  estate  in  himself  or  his  heirs.  As  the  law  does  not 
presume  forfeiture,  it  requires  some  express  act  of  the  grantor 
as  evidence  of  his  intention  to  reclaim  the  estate,  viz.,  an  entry. 

"A  limitation  is  conclusive  of  the  time  of  continuance,  and  of 
the  extent  of  the  estate  granted,  and  beyond  which  it  is  declared 
at  its  creation  not  to  be  intended  to  continue.  Conditions  render 
the  estate  voidable  by  entry;  limitations  render  it  void  without 
entry.  ...  A  limitation  is  imperative,  and  is  determined 
by  rules  of  law.  A  condition  not  only  depends  on  the  option  of 
the  grantor,  but  is  also  controlled  by  equity  if  the  grantor  at- 
tempts to  make  an  inequitable  use  of  it.  The  performance  of  a 
condition  [subsequent]  is  excused  by  the  act  of  God,  or  of  the 
law,  or  of  the  party  for  whose  benefit  it  was  made;  a  limitation 
determines  the  estate  absolutely  whatever  be  its  nature." 


§§253-254]  ESTATES    ON    CONDITION.  323 

The  estate  for  life  is  given  until  the  grantee's  death;  and 
when  that  event  happens,  it  expires  by  limitation. 

To  constitute  a  condition  subsequent,  there  must  be  some- 
thing added  to  the  limitation,  "a  distinct  clause,"  whose  office 
is  "to  defeat  the  estate  [already  limited]  on  some  event  which 
may  happen,  or  on  some  act  to  be  done,  before  the  estate 
has  filled  the  utmost  measure  or  time  appointed  for  its  con- 
tinuance.'"' 1  Shepp.  Touch.  (117).  Here  the  estate  granted 
has  not  filled  out  the  measure  of  its  limitation  when  the  con- 
dition is  broken;  and  for  such  breach  the  grantor  may  enter 
and  divest  the  estate,  which  does  not  end  by  limitation,  but 
is  destroyed  by  the  enforcement  of  a  forfeiture.  The  grantor 
may  waive  the  forfeiture,  and  then  the  estate  will  continue 
as  limited.  But  when  the  period  of  limitation  has  passed,  the 
estate  ends  of  itself  and  without  entry.  Indeed,  it  cannot 
continue  longer,  even  if  the  grantor  wishes  it,  for  there  is 
nothing  to  continue.  1  Preston,  Estates  (45)  ;  2  Tho  Co. 
(87)  n.  (L.  2);  2  Bl.  Com.  (155);  Millan  v.  Kephart,  18 
Graft.  1,  7;  Smith  v.  Smith,  23  Wise.  176  (99  Am.  Dec. 
153)  Atlanta,  &c,  R.  Co.  v.  Jackson,  108  Ga.  634  (34  S.  E. 
184). 

§  254.    Marriage  as  a  Limitation  or  Condition  Subsequent. 

— It  will  conduce  to  clearness  to  illustrate  the  difference  be- 
tween a  limitation  and  a  condition  by  the  not  uncommon 
case  of  a  gift  to  a  widow  dependent  on  her  not  marrying 
again.  Let  us  suppose  first  that  land  is  given  a  widow  while 
she  remains  unmarried  {durante  viduitate)  :  is  this  a  limita- 
tion or  a  condition?  And  if  she  marries,  does  she  forfeit 
the  estate,  or  does  it  expire  by  limitation?  It  is  not  dif- 
ficult to  see  that  it  is  a  limitation  merely,  without  the  sem- 
blance of  a  condition.  How  long  is  the  land  given  the 
widow?  While  she  remains  unmarried,  or  what  is  the  same 
thing,  until  she  marries.  Nothing  is  said  about  her  life;  it 
is  not  limited  until  her  death,  but  until  her  marriage.  When, 
therefore,  she  marries,  she  has  enjoyed  all  the  estate  that  was 
given  her,  and  cannot  complain  that  she  has  lost  anything  by 


324  REAL    PROPERTY.  [Chap.  13 

forfeiture ;  the  land  was  given  her  until  her  marriage,  and  on 
that  event,  the  estate  ends  by  limitation.  And  while  the 
estate  might  have  continued  until  the  widow's  death,  if  she 
had  remained  unmarried,  yet  it  is  not  true  that  on  her  mar- 
riage a  larger  estate  limited  is  thereby  cut  short  and  defeated. 
The  estate  is  until  her  marriage,  and  when  that  takes  place, 
whether  sooner  or  later,  the  entire  estate  given  has  been  en- 
joyed, and  is  at  an  end  without  entry  by  the  grantor. 

But  suppose  land  is  given  to  a  widow  for  life,  with  a  con- 
dition superadded  that  she  shall  not  marry;  and  with  a  pro- 
viso that  if  she  does  marry,  the  grantor  may  enter  upon  the 
land  immediately,  and  resume  possession.  Here  the  limita- 
tion is  for  life,  which  is  equal  to  until  death.  But  this  is  not 
all.  There  is  superadded  or  imposed  on  the  limitation  a  con- 
dition, viz.,  that  the  widow  shall  not  marry.  Suppose,  how- 
ever, she  does  marr}r,  what  is  the  result?  Will  her  estate,  in 
case  the  grantor  enforces  the  condition  and  takes  the  land 
from  her,  end  by  limitation  ?  Clearly  not,  for  the  estate  lim- 
ited was  for  her  life,  and  would  not  end  by  limitation  until 
her  death;  whereas  her  estate  is  divested  and  ends  on  her 
marriage — perhaps  many  years  before  her  death.  Hence  the 
estate  has  died  a  violent  death;  the  estate  limited  to  the 
widow  was  larger  than  that  which  she  has  enjoyed;  the  entry 
of  the  grantor  cuts  it  short  before  the  time  limited.  The 
widow  forfeits  for  breach  of  condition. 

It  may  be  objected  that  in  the  two  cases  just  put  the  prac- 
tical effect  is  the  same,  whether  we  regard  the  language  as 
importing  a  limitation  or  a  condition;  that  in  either  case,  if 
the  widow  does  not  marry,  her  estate  continues  until  her 
death;  while  if  she  does  marry,  her  estate  is  at  an  end.  But 
there  is ,  an  important  difference.  If  the  land  is  given  to 
the  widow  until  she  marries,  the  effect  of  her  marriage  is  to 
terminate  her  estate  ipso  facto,  and  immediately.  No  entry 
by  the  grantor  is  required  in  order  to  terminate  her  estate. 
If  the  widow  remains  in  possession,  it  is  as  tenant  by  suffer- 
ance, or  by  virtue  of  some  new  estate  given  her  by  the  grantor. 


§§254,255]  ESTATES    ON    CONDITION.  325 

When,  however,  the  land  is  given  to  the  widow  for  life  on 
condition  that  she  does  not  marry,  the  effect  of  her  marriage 
is  not  to  end  her  estate  ipso  facto;  for  a  life  estate  was  given 
her,  and  that  does  not  expire  by  limitation  on  marriage.  The 
grantor  must  reenter  and  take  the  land,  or  the  widow  will 
remain  in  possession  by  virtue  of  her  old  estate.  In  other 
words,  she  is  liable  to  forfeit  the  life  estate  on  her  marriage, 
but  if  the  grantor  waives  the  forfeiture  (as  he  may)  the 
life  estate  continues  to  its  natural  termination.  Coppage  v. 
Alexander,  2  B.  Monroe,  313  (38  Am.  Dec.  153);  Little  v. 
BirdwelJ,  21  Tex.  597  (73  Am.  Dec.  242) ;  Bostick  v.  Blades, 
59  Md.  231  (43  Am.  Rep.  548) ;  Mann  v.  Jackson,  84  Me. 
400  (24  Atl.  886)  ;  Gillespie  v.  Allison,  117  N.  C.  512  (20 
S.  E.  627)  ;  Dubois  v.  Van  Valen  (N.  J.)  48  Atl.  241;  Shaw 
v.  Shaw,  (la.)  68  K  W.  327;  Chenault  v.  Scott  (Ky.)  66  S. 
W.  759. 

§  255.  Collateral  Limitation. — We  have  seen  the  nature  of 
a  simple  limitation,  and  how  it  differs  from  a  limitation  with 
a  condition  subsequent  imposed  on  it.  Let  us  now  consider 
a  collateral  limitation.  In  1  Preston  on  Estates  (42)  it  is 
said : 

"A  direct  limitation  marks  the  duration  of  an  estate  by 
the  life  of  a  person,  or  by  the  continuance  of  heirs,  or  by  a 
space  of  precise  and  measured  time ;  making  the  death ,  of  the 
person  in  the  first  example,  the  continuance  of  heirs  in  the 
second  example,  and  the  length  of  the  given  space  in  the  third 
example,  the  boundary  of  the  estate  or  the  period  of  duration. 
A  collateral  limitation,  at  the  same  time  that  it  gives  an 
interest  which  may  have  continuance  for  one  of  the  times  in 
a  direct  limitation,  may  on  some  event  which  it  describes  put 
an  end  to  the  right  of  enjoyment  during  the  continuance  of 
that  time." 

In  Millan  v.  Kephart,  18  Graft.  1,  it  is  said  by  Joynes,  J. : 
"A  collateral  limitation  marks  an  event  which  may  happen 
within  the  time  described  in  the  direct  limitation;  and  on 
the  happening  of  that  event  puts  an  end  to  the  estate.    Thus 


326  REAL    PROPERTY.  [Chap.  13 

a  lease  'To  A  for  20  years  or  until  B  shall  return  from  Rome' 
may  cease  and  determine  either  by  the  expiration  of  twenty 
years,  the  time  marked  for  its  duration  by  the  direct  limita- 
tion, or  by  the  happening  within  that  time  of  the  event  de- 
scribed in  the  collateral  limitation,  to-wit,  the  return  from 
Rome.  In  either  case  the  estate  of  the  tenant  will  have 
reached  the  utmost  bounds  marked  for  its  continuance  by 
the  limitation  by  which  its  duration  is  governed;  and  so,  in 
either  case,  the  right  of  the  tenant  will  be  absolutely  at  an 
end  without  entry  or  other  act  on  the  part  of  the  landlord."1 

1  Remainder  after  a  Collateral  Limitation  Distinguished 
from  a  Conditional  Limitation. — For  the  definition  and  explana- 
tion of  a  conditional  limitation,  see  supra,  §  212.  It  is  there 
stated  that  a  limitation  over  after  a  particular  estate  defeasible 
by  condition  subsequent  cannot  be  a  remainder,  and  is  void  at 
common  law.  Outland  v.  Bowen,  115  Ind.  150  (7  Am.  St.  Rep. 
420);  Carney  v.  Kain,  40  W.  Va.  758  (23  S.  E.  650,  659);  Lock- 
ridge  v.  McCommon,  90  Tex.  234  (38  S.  W.  33).  But,  of  course, 
a  remainder  can  follow  a  particular  estate  to  end  by  limitation, 
and  this  whether  the  limitation  of  the  particular  estate  be  single 
or  double,  direct  or  collateral. 

Thus  a  devise  to  A  during  her  widowhood,  with  remainder  to 
B  and  his  heirs,  gives  B  a  vested  remainder.  In  construction  of 
law,  A  has  an  estate  of  freehold,  because  it  is  of  uncertain  dura- 
tion and  may  by  possibility  last  for  her  life.  See  §  9,  supra; 
1  Preston,  Estates  (127).  A's  estate  will  end  by  limitation  either 
on  her  marriage  or  death;  but  in  either  case,  B,  a  certain  per- 
son, is  ready  to  take.  Hence  the  remainder  is  vested.  Little  v. 
Birdweil,  21  Texas,  597  (73  Am.  Dec.  242);  Gillespie  v.  Allison, 
117  N.  C.  512  (20  S.  E.  627);  Dubois  v.  Van  Valen  (N.  J.),  48 
Atl.  241. 

And  it  is  even  held  that  a  devise  to  the  testator's  wife,  "so 
long  as  she  should  remain  his  widow,  and  on  her  second  marriage 
to  B  and  his  heirs,"  gives  B  a  vested  remainder,  the  construction 
being  that  B  is  to  take  in  whichever  way  the  widow's  estate  ends, 
whether  by  her  death  of  by  her  marriage.  Fearne  on  Rem.  (5), 
note  (d);  Underhill  v.  Rodes,  2  Ch.  D.  494  (17  Moak,  589);  20 
Am.  and  Eng.  Ency.  Law  (1st  ed.),  864  and  note. 

In  the  above  examples,  the  express  limitation  was  single  or 
direct;  but  as  the  estate  is  determinable  on  more  than  one  event, 
the   limitation   is   considered   collateral,   by   intendment   of   law. 


§255]  ESTATES    ON    CONDITION.  327 

Again,  suppose  land  is  granted  to  a  widow  "until  her 
death  or  marriage."  Here  the  grantor  has  chosen  two  events 
as  alternative  limitations,  on  the  happening  of  either  of 
which  the  estate  given  immediately  determines.  The  limita- 
tion until  death  is  the  longer  or  direct  limitation;  that  until 
marriage  is  the  shorter  or  collateral  limitation,  since  by  it 
the  widow's  estate  may  end  during  her  life.  But  her  mar- 
riage cannot  be  regarded  as  a  cause  of  forfeiture.  That 
event  is  embodied  in  the  limitation  itself,  as  part  of  it,  and 
does  not  follow  the  limitation  for  life  "as  a  distinct  clause," 
to  defeat  the  larger  estate  granted.  Hence  it  results  that  no 
more  on  the  marriage  than  the  death  of  the  widow  is  entry 
by  the  grantor  necessary  to  terminate  her  estate;  for  on 
either  event  it  ends  of  itself,  by  limitation. 

Thus  in  Coppage  v.  Alexander,  2  B.  Mon.  (Ky.)  313  (38 
Am.  Dec.  153),  the, devise  was:  "I  give  unto  my  beloved  wife, 

An  express  collateral  limitation  would  be,  as  we  have  seen  above, 
"To  A  for  life,  or  until  her  marriage."  Sometimes  the  express 
and  implied  collateral  limitations  are  treated  without  discrimina- 
tion, and  as  if  all  were  express.  See  1  Preston  on  Estates  (42), 
where  these  examples  are  given  of  collateral  limitations:  "To 
a  man  and  his  heirs,  tenants  of  the  manor  of  Dale;  or  to  a 
woman  during  widowhood;  or  to  C  until  the  return  of  himself 
or  B  from  Rome;  or  to  D  for  21  years  if  A  should  so  long  live." 
Returning  to  limitations  over  after  determinable  particular  es- 
tates, a  remainder,  even  at  common  law,  may  be  limited  to  com- 
mence on  the  event  which  is  to  determine  the  particular  estate, 
as  when  a  grant  is  made,  "To  A  until  his  return  from  Rome; 
and  from  and  after  A's  return,  remainder  to  B  and  his  heirs 
(see  §  178,  supra).  For,  in  the  language  of  Preston  (Estates  (54), 
"the  event  is  part  of  the  measure  of  the  estate  [of  Al  or  [its] 
duration  of  ownership,  and  not  a  condition.  The  event  is  to  de- 
termine the  estate  by  limitation,  and  not  to  defeat  it  by  condi- 
tions. The  particular  estate  must  have  filled  the  measure  of  [its] 
duration  before  the  remainder  can  confer  a  right  to  the  posses- 
sion." And  see  for  fuller  explanation  Fearne  (10),  Butler's 
note.  And  the  same  explanation  is  applicable  to  a  remainder 
after  an  estate  "to  A  for  99  years,  if  he  shall  so  long  live."  The 
contingent  clause  is  not  a  condition  subsequent,  but  a  part  of 
the  original  limitation  of  A's  estate.     See  §  179,  supra. 


328  REAL    PROPERTY.  [Chap.  13 

Mary  Alexander,  the  half  of  my  land  I  now  own  during  her 
widowhood  or  life;"  and  it  was  held  that  this  should  be  con- 
strued "as  a  limitation  expressive  of  the  duration  of  the 
estate,  and  not  as  a  condition  subsequent."  The  court  said : 
'"The  happening  of  either  event  was  intended  to  terminate  the 
estate.  It  was  intended  as  a  benefit  durante  viduitate  and  no 
longer.  The  estate  was  not  vested  for  life,  to  be  forfeited  if 
she  married ;  but  is  vested  during  her  widowhood  only,  in  the 
event  of  her  marriage,  and  must  cease  with  the  termination 
of  her  widowhood,  as  one  of  the  pediods  to  which  it  was 
limited,  and  upon  the  accrual  of  which  it  was  made  to  ex- 
pire." And  see  Pearse  v.  Owens,  3  1ST.  C.  415  (2  Hayw. 
234). 

§  256.    Collateral  Limitation  by  Way  of  a  Base  Fee. — For 

an  explanation  of  a  base  or  determinable  fee,  see  §  37,  supra. 
In  2  Bl.  Com.  (154),  base  fees  are  classed  with  estates  on 
condition  subsequent,  but  this  a  mistake.  A  base  fee  is  a 
fee  determinable  on  a  contingent  event.  The  estate  is  lim- 
ited in  fee  or  until  the  event;  and  on  the  happening  of  the 
event  it  ends  instanter,  and  no  entry  of  the  grantor  is  neces- 
sary in  order  to  terminate  it.  The  event  is  therefore  in  the 
nature  of  a  limitation  of  the  estate,  and  not  a  condition  sub- 
sequent. See  1  Prest.  Est.  (126),  (442);  Union  Canal  Co. 
v.  Young,  1  Whart.  (Pa.)  410  (30  Am.  Dec.  212);  Leonard 
v.  Burr,  18  N.  Y.  96;  Smith  v.  Smith,  23  AVisc.  176  (99 
Am.  Dec.  153);  Henderson  v.  Hunter,  59  Pa.  St.  335; 
United  States  Pipe  Line  Co.  v.  Delaware,  &c,  R.  Co.,  62  N. 
J.  Law,  254  (41  Atl.  759;  42  L.  E.  A.,  572)  ;  Atlanta,  &c, 
R.  Co.  v.  Jackson,  108  Ga.  634  (34  S.  E.  184).  And  see 
Boiling  v.  Petersburg,  8  Leigh  (Va.)  224,  234. 

The  grantor  of  a  base  fee  while  the  event  remains  contin- 
gent has  no  reversion  in  the  land  granted,  but  only  a  possi- 
bility of  reverter,  i.  e.,  a  chance  to  get  back  the  estate  if  the 
event  does  happen  at  any  future  time.  And  in  Gray's  Rule 
against  Perpetuities,  §§  31-42,  it  is  contended  that  since 
the   statute   of   Quia   Emptores,   abolishing   tenure   between 


§§255-256]  ESTATES    ON    CONDITION.  329 

feoffor  and  feoffee  on  a  grant  of  the  fee-simple  (see  §  54, 
supra),  possibilities  of  reverter  are  not  valid  interests  in  land, 
and  that  by  virtue  of  that  statute  base  fees  have  ceased  to 
exist.  But  in  the  United  States  base  fees  are  not  considered 
as  dependent  on  the  existence  of  tenure,  and  are  still  recog- 
nized as  valid  estates,  as  Prof.  Gray  concedes  and  laments. 

In  First  Universalist  Society  v.  Boland,  155  Mass.  171,  it 
is  said:  "A  question  or  doubt,  however,  has  arisen,  though 
not  urged  by  counsel  in  this  case,  whether  after  all  there  is 
now  any  such  estate  as  a  qualified  or  determinable  fee,  or 
whether  this  form  of  estate  was  done  away  with  by  the  stat- 
ute of  Quia  Emptores.  See  Gray,  Rule  against  Perpetuities, 
§§  31-40,  where  the  question  is  discussed  and  authorities  are 
cited.  We  have  considered  this  question;  and  whatever  may 
be  the  true  solution  of  it  in  England,  where  the  doctrine  of 
tenure  still  has  some  significance,  we  think  the  existence  of 
such  an  estate  as  a  qualified  or  determinable  fee  must  be  rec- 
ognized in  this  country,  and  such  is  the  general  consensus  of 
opinion  of  courts  and  text-writers."  Many  authorities  are 
cited  by  the  court  (p.  175). 

Prof  Gray  also  argues  (Rule  against  Perpetuities,  §  312) 
that  such  possibilities  of  reverter,  if  allowed,  would  violate 
the  rule  against  perpetuities,  as  the  reverter  might  not  take 
place  within  lives  in  being  and  21  years  thereafter.  But  this 
objection  has  not  been  allowed  in  the  United  States.  See 
First  Universalist  Society  v.  Boland,  supra,  where  it  is  said 
(at  p.  175)  :  "Clark's  possibility  of  reverter  [after  a  base 
fee]  is  not  invalid  for  remoteness.  It  has  been  expressly 
held  by  this  court  that  such  possibility  of  reverter  upon  a 
breach  of  a  condition  subsequent  is  not  within  the  rule 
against  perpetuities.  Tobey  v.  Moore,  130  Mass.  448;  French 
v.  Old  South  Society,  106  Mass.  479.  If  there  is  any  distinc- 
tion in  this  respect  between  such  possibility  of  reverter  and 
that  which  arises  on  the  determination  of  a  qualified. fee,  it 
would  seem  to  be  in  favor  of  the  latter.  But  they  should  be 
governed  by  the  same  rule.     If  one  is  held  void  for  remote- 


330  REAL    PROPERTY.  [Chap.  13 

ness  the  other  should  be.  The  very  many  cases  cited  in  Gray, 
Rule  against  Perpetuities,  §§  305-312,  show  conclusively  that 
the  general  understanding  of  courts  and  the  profession  in 
America  has  been  that  the  rule  as  to  remoteness  does  not 
apply;  though  the  learned  author  thinks  this  view  erroneous 
on  principle."  See  note  to  Barnum  v.  Barnum  (Md.)  90 
Am.  Dec.  103-4. 

For  a  recent  case  in  which  an  estate  was  held  to  be  a  base 
fee,  see  Pettitt  v.  Stuttgart,  &c,  Institute  (Ark.)  55  S.  W. 
■185.  For  other  cases  in  which  reference  is  made  to  base 
fees,  see  Stuart  v.  Easton,  170  U.  S.  394;  Noyes  v.  St.  Loui*, 
&c,  R.  Co.  (111.)  21  N.  E.  487;  Hunter  v.  Murfee  (Ala.) 
28  So.  9. 

§  257.  Condition  Subsequent  Distinguished  from  a  Cove- 
nant; Covenant  Favored. — In  many  cases  words  relied  upon 
as  creating  a  condition  subsequent,  and  technically  sufficient 
for  that  purpose,  have,  upon  their  true  construction,  been 
held  to  be  contractual  in  their  nature,  imposing  the  obliga- 
tion of  a  covenant,  and  not  conditional,  with  liability  to 
forfeiture.  "A  condition  differs  from  a  covenant.  The  legal 
responsibility  of  non-fulfilment  of  a  covenant  is  that  the 
party  violating  it  must  respond  in  damages.  The  conse- 
quence of  the  non-fulfilment  of  a  condition  is  forfeiture  of 
the  estate.  The  grantor  may  reenter  and  possess  himself 
of  his  former  estate.  This  court  [of  equity],  in  a  proper 
case,  can  enforce  the  specific  performance  of  a  covenant;  but 
it  cannot  enforce  the  specific  performance  of  that  in  a  deed, 
the  non-performance  of  which  works  a  forfeiture  of  the 
estate."  Woodruff  v.  Woodruff,  44  N.  J.  Eq.  349  (1  L.  E.  A. 
380,  and  note).  See  also  Post  v.  Weil,  115  X.  Y.  361  (12 
Am.  St.  Eep.  809,  818)  ;  Chicago,  &c.,  R.  Co.  v.  Titterington, 
84  Texas,  218  (31  Am.  St.  Eep.  39,  42)  ;  Brown  v.  Chicago, 
&c,  R.  Co.  (Iowa),  82  N.  W.  1003. 

It  is  well  settled  that  no  particular  words  are  necessary  to 
create  a  covenant.  In  Sheppard's  Touchstone  (162)  it  is 
said :   "And  there  needs  not,  in  this  case,  formal  and  orderly 


§§256,257]  ESTATES    ON    CONDITION.  331 

words,  as  covenant,  promise,  and  the  like,  to  make  a  covenant 
on  which  to  ground  an  action  of  covenant;  for  covenant  may- 
be had  by  any  other  words;  and  upon  any  part  of  an  agree- 
ment in  writing  [under  seal],  in  what  words  soever  it  be  set 
down  for  anything  to  be  or  not  to  be  done,  the  party  to  or 
with  whom  the  promise  or  agreement  is  made,  may  have  this 
action  [of  covenant]  upon  the  breach  of  the  agreement." 
See  Hale  v.  Finch,  104  U.  S.  261,  where  this  language  is 
quoted  with  approval;  Graves  v.  Deterling,  120  N".  Y.  448, 
457.1 

1  Covenant  or  Condition  Subsequent. — In  Post  v.  Weil,  115 
N.  Y.  361  (12  Am.  St.  Rep.  809)  the  deed  contained  these  words: 
"Provided  always,  and  these  presents  are  upon  this  express  condi- 
tion, that  the  aforesaid  premises  shall  not,  nor  shall  any  part 
thereof,  or  any  building  or  buildings  thereon  erected,  be  at  any 
time  hereafter  used  or  occupied  as  a  tavern  or  public  house  of 
any  kind."  Held,  that  these  words  were  intended  as  a  restriction, 
created  for  the  benefit  of  the  adjoining  property,  expressed  in  the 
strongest  terms,  and  which  was  enforceable  as  a  covenant  running 
with  the  land,  and  was  not  a  condition  subsequent,  imposed  for 
the  personal  benefit  of  the  grantors  and  their  heirs.  And  see 
Clark  v.  Martin,  49  Pa.  St.  289;  Watrous  v.  Allen,  57  Mich.  362 
(24  N.  W.  104). 

On  the  other  hand,  in  Clapp  v.  Wilder,  176  Mass.  333,  these 
words:  "And  this  conveyance  is  made  upon  the  express  condition 
that  said  Wilder  and  Hills,  their  heirs  and  assigns,  shall  never 
erect  any  building  nearer  the  street  line  of  the  said  land  than  the 
store  building  now  thereon,"  created  a  technical,  common  law 
condition,  the  only  remedy  for  which  was  the  enforcement  of  a 
forfeiture.     The   court  said: 

"No  doubt  there  is  a  disposition  among  courts  to  look  for  some- 
thing in  the  deed  which  shall  modify  the  severity  of  the  lan- 
guage [i,  c,  as  creating  a  conditionl ;  and  sometimes  considerable 
astuteness  has  been  exercised  in  this  direction  (Post  v.  Weil,  115 
N.  Y.  361 )  ;  and  no  doubt  ihe  language  |  of  conditionl  is  some- 
times used  when  from  the  whole  deed  it  sufficiently  appears  that 
it  could  not  have  been  intended  in  its  full  technical  sense,  and 
in  such  cases  a  restriction  and  not  a  technical  condition  is  the 
result."  Morton,  J.,  wrote  a  strong  dissenting  opinion,  approv- 
ing Post  v.  Weil,  in  which  Knowlton  and  Lathrop,  JJ.,  concurred. 

For  other  cases  of  words  construed  as  covenants,  see  Super- 


332  REAL    PROPERTY.  [Chap.  13 

It  is  also  well  settled  that  as  conditions  subsequent  tend 
to  destroy  estates,  they  are  not  favored  in  law.  Peden  v. 
Chicago,  &c,  B.  Co.  73  Iowa  378  (5  Am.  St.  Eep.  680) ; 
KilpatricJc  v.  Mayor  of  Baltimore,  81  Md.  179  (48  Am.  St. 
Eep.  509).  In  Scovill  v.  McMahon,  62  Conn.  378  (36  Am. 
St.  Eep.  350),  it  is  said:  "The  law  is  well  established  that 
such  conditions  are  not  favored,  and  are  created  only  by  ex- 
press terms  or  clear  implication;  that  courts  will  always 
construe  clauses  in  deeds  as  covenants  rather  than  conditions, 
if  they  can  reasonably  do  so;  that  if  it  is  doubtful  whether 
a  clause  in  a  deed  imports  a  condition  or  a  covenant,  the 
latter  construction  will  be  adopted;  and  that  though  apt 
words  for  the  creation  of  a  condition  are  employed,  yet,  in 
the  absence  of  an  express  provision  for  reentry  or  forfeiture, 
the  court,  from  the  nature  of  the  acts  to  be  performed  or 
prohibited  by  the  language  of  the  deed,  from  the  relation  and 
situation  of  the  parties,  and  from  the  entire  instrument,  will 
determine  the  real  intention  of  the  parties."  See  in  accord 
Curtis  v.  Board  of  Education,  43  Kansas,  138  (23  Pac.  98) ; 
Greene  v.  O'Connor,  18  E.  I.  56  (19  L.  E,  A.  262,  and  note) ; 
Ehjton  Land  Co.  v.  South  &c,  B.  Co.  100  Ala.  396  (14  So. 
207)  ;  Faith  v.  Bowles,  86  Md.  13  (63  Am.  St.  Eep.  489)  ; 
King  v.  Norfolk,  &c,  B.  Co.,  99  Va.  625;  Lowman  v.  Craw- 
ford, 99  Va.  689. 

But  although  no  technical  words  are  required  to  create  a 
covenant,  and  although  even  technical  words  of  condition 
may  be  construed  as  a  covenant,  if  such  be  the  intention,  yet 
as  is  said  in  Palmer  v.  Blcuikroad  Co.  11  N.  Y.  376,  389: 
"It  is  clear  from  the  authorities  that  there  may  be  a  condi- 
tion without  a  covenant ;  and  that  where  the  language  imports 

visors  v.  Bedford  High  School,  92  Va.  292;  Thornton  v.  Trammell, 
39  Ga.  202;  Hartung  v.  Witte,  59  Wise.  285  (18  N.  W.  175) ;  Curtis 
v.  Board  of  Education,  43  Kansas,  138  (23  Pac.  98);  Star  Brewery 
v.  Primas,  163  111.  652  (45  N.  E.  145);  Carroll  County  Academy 
v.  Trustees,  dc.  (Ky.)  47  S.  W.  617.  And  see  Stuart  v.  Easton, 
170  U.  S.  383. 


§§257,258]  ESTATES    ON    CONDITION.  333 

a  condition  merely,  and  there  are  no  words  importing  an 
agreement,  it  cannot  be  enforced  as  a  covenant,  but  the  only 
remedy  is  through  a  forfeiture  of  the  estate.  .  .  .  It  by 
no  means  follows  that  because  a  grantor  consents  to  take  an 
estate  subject  to  a  certain  condition  that  he  also  consents  to 
obligate  himself  personally  for  the  performance  of  the  con- 
dition. Man}'  cases  might  be  imagined  where  one  would  be 
willing  to  risk  the  forfeiture  of  the  estate,  while  he  would  be 
altogether  unwilling  to  incur  the  hazard  of  a  personal  re- 
sponsibility." See  Hale  v.  Finch,  104  U.  S.  261,  269; 
Blanchard  v.  Detroit,  &c,  R.  Co.,  31  Mich.  43,  52;  Close  v. 
Burlington,  &c,  B.  Co.,  64  la.  150  (19  N".  W.  186).  And 
see  Brown  v.  Chicago,  &c,  R.  Co.  82  N".  W.  1003,  where  it  is 
said :  "Surely  unless  the  terms  of  the  deed  were  such  that  its 
acceptance  imposed  some  obligation  on  the  grantee  to  do  or 
not  to  do,  the  clause  cannot  be  said  to  be  a  covenant." 

§  258.  Condition  Subsequent  Distinguished  from  a  Trust. 
— For  thj  same  reason  that  the  law  favors  a  covenant  rather 
than  a  condition  subsequent — its  dislike  of  forfeitures — it 
prefers  to  construe  words  qualifying  the  ownership  of  lands 
as  trusts  rather  than  conditions. 

In  Stanley  v.  Colt,  5  Wall.  119,  165,  a  condition  is  thus 
distinguished  from  a  trust :  "A  condition,  if  broken,  forfeits 
the  estate,  and  forever  thereafter  deprives  the  society  [the 
devisee]  of  the  gift;  and  not  only  this,  but  the  heirs  become 
seised  of  the  first  estate,  and  avoid,  of  course,  all  interme- 
diate charges  and  encumbrances,  and  take  also  free  and  clear 
all  the  expenditures  and  improvements  that  may  have  been 
laid  out  on  the  property.  On  the  other  hand,  if  these  limita- 
tions are  to  be  regarded  as  regulations  to  guide  the  trustees, 
and  explanatory  of  the  terms  upon  which  the  devise  has  been 
made,  they  create  a  trust  which  those  who  take  the  estate  are 
bound  to  perform;  and,  in  case  of  a  breach,  a  court  of  equity 
will  interpose  and  enforce  performance."  See  also  Stuart  V. 
Easton,  170  IT.  S.  383,  402. 

So  strongly  does  the  law  favor  a  trust  rather  than  a  con- 


334  REAL    PROPERTY.  [Chap.  13 

dition  that  even  the  technical  words  of  condition  may  be 
denied  their  ordinary  meaning,  and,  if  such  appears  to  be 
the  intention,  construed  as  trusts.  Thus  in  Stanley  V.  Colt, 
supra,  it  is  said :  "It  is  true  the  word  'proviso'  is  an  appro- 
priate one  to  constitute  a  common  law  condition  in  a  deed  or 
will,  but  this  is  not  the  fixed  and  invariable  meaning  at- 
tached to  it  by  the  law  in  these  instruments.  On  the  con- 
trary, it  gives  way  to  the  intent  of  the  parties  as  gathered 
from  an  examination  of  the  whole  instrument,  and  has  fre- 
quently been  thus  explained  and  applied  as  expressing  simply 
a  covenant  or  limitation  in  trust." 

In  this  case,  a  devise  to  an  ecclesiastical  society,  "provided 
that  said  real  estate  be  not  ever  hereafter  sold  or  disposed 
of,"  etc.,  was  held,  in  connection  with  the  other  provisions 
of  the  will,  to  be  a  gift  in  trust,  and  not  on  condition.  And 
the  same  result  was  reached  where  the  words  were  "upon  this 
express  condition"  (Wright  v.  Wilkin,  2  Best  &  Smith  (110 
E.  C.  L.  E.)  232,  259);  "in  trust  nevertheless  and  on  con- 
dition always"  (Sohier  v.  Trinity  Church,  109  Mass.  1)  ; 
"with  this  express  limitation  and  condition"  (Mills  v.  Davi- 
son, 54  1ST.  J.  Eq.  659;  35  L.  E.  A.  113).    . 

In  Neely  v.  Hoshins,  84  Me.  386  (24  Atl.  882),  land  was 
conveyed  "upon  the  condition  that  it  shall  be  forever  for  the 
use  of  the  Protestant  Episcopal  Church  at  Old  Town,"  and 
this  was  held  to  be,  not  a  condition  for  the  benefit  of  the 
grantor,  but  a  trust  which  equity  would  enforce  at  the  instance 
and  for  the  benefit  of  the  parish.  The  court  said :  "It  is  not 
expressed  in  the  deed  that  the  estate  shall  be  revertible  for  any 
cause,  but  it  is  contended  that  the  idea  is  implied.  The 
term  'condition'  does  not  necessarily  import  it.  'Condition' 
may  mean  'trust,'  and  'trust'  mean  'condition,'  oftentimes. 
The  construction  must  depend  on  the  context  and  any  ad- 
missible evidence  outside  of  the  deed."  And  see  Jones  v. 
Habersham.,  107  U.  S.  174. 

§  259.  Not  Condition  Subsequent  When  a  Conveyance  of 
Land  is  for  a  Particular  Purpose. — It  is  almost  universally 


§§258,259]  ESTATES    ON    CONDITION.  335 

held  that  the  expression  in  a  conveyance  of  the  use  to  be 
made  of  the  land  does  not  amount  to  a  condition  subsequent, 
though  it  may  create  a  covenant  or  trust.  The  leading  case 
on  this  subject  is  Rawson  v.  School  District,  7  Allen  (Mass.) 
125  (83  Am.  Dec.  670),  where  land  was  granted  to  a  town 
"to  their  only  proper  use,  benefit,  and  behoof,  for  a  burying 
place  forever."  In  an  elaborate  opinion  by  Bigelow,  C.  J., 
it  was  held  that  these  words  did  not  create  a  condition  sub- 
sequent.   And  it  was  said  : 

"We  believe  there  is  no  authoritative  sanction  for  the  doc- 
trine that  a  deed  is  to  be  construed  as  a  grant  on  a  condition 
subsequent  solely  for  the  reason  that  it  contains  a  clause  de- 
claring the  purpose  for  which  it  is  intended  the  granted 
premises  shall  be  used,  where  such  purpose  will  not  inure 
specially  to  the  benefit  of  the  grantor  and  his  assigns,  but  is 
in  its  nature  general  and  public,  and  where  there  are  no 
other  words  indicating  an  intent  that  the  grant  is  to  be  void 
if  the  declared  purpose  is  not  fulfilled."1 

1  Conveyances  of  Land  for  a  Particular  Purpose. — In  a  few 
cases,  the  expression  of  the  purpose  of  a  conveyance  of  land  has 
been  deemed  to  render  a  grant  conditional.  In  Hunt  v.  Beeson. 
18  Ind.  380,  where  land  was  donated  "for  a  tan-yard,"  the  court 
held  that  it  was  given  on  a  condition  subsequent.  But  see 
Farnham  v.  Thompson,  34  Minn.  331  (57  Am.  Rep.  59),  where  it 
is  said  of  Hunt  v.  Beeson:  "That  decision  seems  to  have  been 
made  on  the  authority  of  Hayden  v.  Stoughton,  5  Pick.  258;  and 
in  the  latter  case  there  were  technical  words  of  condition." 

In  Indianapolis,  Ac,  R.  Co.  v.  Hood,  66  Ind.  580,  a  deed  was 
made  of  lots  to  the  company  "for  a  site  for  the  depot  of  said  rail- 
road at  Peru,  ...  to  have  and  to  hold  the  premises  .  .  . 
for  the  purpose  aforesaid;"  and  the  court  said:  "The  condition 
subsequent  was,  we  think,  clearly  expressed  in  the  deed  under 
consideration,  although  the  word  'condition'  was  not  used  therein, 
and  it  is  very  evident  that  this  condition  subsequent  was  the 
only  consideration  or  inducement  for  the  execution  of  the  said 
deed."  But  see  what  is  said  of  this  case  in  Sumner  v.  Darnall, 
128  Ind.  38  (13  L.  R.  A.  173). 

In  Flaten  v.  City  of  Moorhead,  51  Minn.  518  (53  N.  W.  807),  a 
deed,  upon  nominal  consideration,  was  made  to  the  village,  and 


336  REAL    PROPERTY.  [Chap.  13 

The  law  as  thus  laid  down  is  followed  in  many  cases, 
among  which  may  be  cited  the  following,  in  which  it  was 
held  that  there  was  no  condition  subsequent:  Noyes  v.  St. 
Louis,  &c,  R.  Co.  (111.),  21  N.  E.  487  ("for  the  erection  and 
maintenance  thereon  of  the  freight  houses  of  the  said  com- 
panies") ;  Sumner  v.  Darnall,  128  Ind.  38;  13  L.  E.  A.  173 
("in  consideration  of  the  seat  of  justice  having  been  perma- 
nently established  at  the  town  of  Centreville,  .  .  .  for  the 
use  of  the  said  county  [of  Wayne]  forever") ;  EilpatricJe  v. 
Mayor  of  Baltimore,  81  Md.  179;  48  Am.  St.  Eep.  509 
("unto  the  Mayor,  etc.,  of  Baltimore,  etc.,  forever,  as  and 
for  a  street  to  be  kept  as  a  public  highway")  ;  Long  v.  Moore, 
19  Tex.  Civ.  Ap.  363;  48  S.  W.  43  ("for  the  purpose  of  a 
female  academy")  ;  Fuquay  v.  Trustees  (Ky.),  58  S.  W. 
814  ("in  consideration  that  the  land  has  been  selected  as  a 
proper  place  for  erecting  and  building  said  academy,  and  as 
a  permanent  site  for  the  same")  ;  Hunter  v.  Murfee  (Ala.), 
28  So.  7  ("to  have  and  to  hold  the  aforegranted  premises  to 

after  the  description  of  the  premises  were  these  words:  "Said 
tract  of  land  hereby  conveyed  to  be  forever  held  and  used  as  a 
public  park."  The  court  held  that  the  village  did  not  take  an 
absolute  title  (all  that  was  necessary  to  decide  for  the  disposition 
of  the  case),  but  did  not  determine  "the  precise  nature  of  the 
estate  conveyed,  whether  a  mere  easement  was  acquired  by  the 
village,  or  an  estate  on  condition,  or  in  trust."  See  this  case 
criticised,  and  declared  opposed  to  principle  and  authority,  by 
Tyson,  J.,  in  Hunter  v.  Murfee,  126  Ala.  123  (28  So.  7). 

Other  cases  which  seem  out  of  the  line  of  the  authorities  are 
cited  in  Hunter  v.  Murfee,  supra,  and  in  note  to  Farnham  v. 
Thompson  (Minn.)  57  Am.  Rep.  63.  For  an  explanation  of  the 
cases  of  Kirk  v.  Kirk,  3  Pa.  St.  436,  and  Scheetz  v.  Fitzxvater,  5 
Pa.  St.  126,  see  Stuart  v.  Eastern,  170  U.  S.  383,  398;  Hunter  v. 
Murfee  (Ala.)  28  So.  7,  9. 

It  has  been  stated  above  that  words  of  exclusion  ("for  no  other 
purpose,"  etc.)  do  not  suffice  to  render  a  deed  conditional.  See 
what  is  said  on  this  point  in  Broivn  v.  Caldwell,  23  W.  Va.  187, 
191;  Stuart  v.  Easton,  170  U.  S.  383,  402;  and  in  Long  v.  Moore, 
19  Tex.  Civ.  App.  363  (48  S.  W.  43,  45).  But  see  Hunter  v.  Mur- 
fee (Ala.)  28  So.  7,  10. 


§§259-260]  ESTATES    ON    CONDITION.  337 

the  said  trustees  of  Howard  Collge,  and  their  successors  in 
office,  to  the  use  of  Howard  College"). 

Nor  will  the  use  of  express  words  of  exclusion  of  any  other 
than  the  designated  use  create  a  condition  subsequent.  This 
was  held  in  the  following  cases :  Brown  v.  Caldwell,  23  W. 
Va.  187  ("to  use  the  aforesaid  acre  of  land  as  a  common 
burying  ground,  and  for  no  other  purpose,  unless  it  be  for 
erecting  thereon  a  house  for  public  Christian  worship") ; 
Barker  v.  Barrows,  138  Mass.  578  ("said  lot  of  land  to  be 
used,  etc.,  as  a  school  house  lot,  and  for  no  other  purpose") ; 
Famham  v.  Thompson,  34  Minn.  331;  57  Am.  Eep.  59  ("for 
the  purpose  of  erecting  a  church  thereon  only")  ;  Raley  v. 
Umatilla  County,  15  Or.  172;  3  Am.  St.  Rep.  112  ("for  the 
special  use  and  none  other  of  educational  purposes") ;  Faith 
v.  Bowles,  86  Md.  13;  63  Am.  St.  Eep.  488  ("for  a  public 
school-house,  as  the  property  of  the  schools  of  said  county, 
and  for  no  other  purpose")  ;  Ecroyd  v.  Coggesliall,  21  R.  I.  1; 
79  Am.  St.  Rep.  741  ("but  no  buildings  for  any  other  mu- 
nicipal purpose  than  that  of  a  city  hall  shall  ever  be  erected 
on  the  granted  premises" ) . 

In  Ecroyd  v.  Coggesliall,  supra,  the  reasons  for  the  decision 
are  thus  stated:  "The  clause  in  question  contains  no  apt  or 
proper  words  to  create  a  condition.  It  simply  declares  that 
the  land  shall  not  be  used  for  any  other  municipal  purpose 
than  that  of  a  city  hall.  .  .  .  There  are  no  words  relating 
to  reentry  or  forfeiture,  but  simply  a  declaration  that  the 
land  conveyed  shall  not  be  used  for  any  other  purpose  than 
that  specified;  and  we  know  of  no  authority  by  which  such  a 
grant  can  be  held  to  be  on  condition." 

§  260.  Trust  When  a  Conveyance  is  for  a  Particular  Pur- 
pose.— In  many  of  the  cases  cited  in  the  previous  section,  the 
action  was  in  ejectment  (or  some  other  action  in  rem)  by 
the  grantor  or  his  heirs  to  recover  the  land,  on  the  theory 
of  forfeiture  for  breach  of  condition  subsequent ;  and  it  was 
sufficient  to  dispose  of  the  case  to  decide  that  there  was  no 
such   condition,   without   passing   on  the   question   of   trust. 

22 


338  REAL    PROPERTY.  [Chap.  13 

This  was  the  case  in  Raivson  v.  School  District    (supra), 
where  the  court  said  (p.  674)  : 

"If  it  be  asked  whether  the  law  will  give  any  force  to 
words  in  a  deed  which  declare  that  the  grant  is  made  for  a 
specific  purpose,  or  to  accomplish  a  particular  object,  the 
answer  is  that  they  may,  if  properly  expressed,  create  a  con- 
fidence or  trust,  or  amount  to  a  covenant  or  agreement  on  the 
part  of  the  grantee.  .  .  .  But  whether  this  is  so  or  not, 
the  absence  of  any  right  or  remedy  in  favor  of  the  grantor, 
under  such  a  grant,  to  enforce  the  appropriation  of  the  land 
to  the  specific  purpose  for  which  it  was  conveyed,  will  not  of 
itself  make  that  a  condition  which  is  not  so  framed  as  to  war- 
rant in  law  that  interpretation.  An  estate  cannot  be  made 
defeasible  on  condition  subsequent  by  construction  founded 
on  an  argument  ab  inconvenienti  only,  or  on  considerations 
of  supposed  hardship  or  want  of  equity."1 

1  Trusts  in  Devises  and  Voluntary  Grants. — In  Raicson  v. 
School  District  (Mass.),  83  Am.  Dec.  670,  it  is  said:  "In  devises 
a  conditional  estate  may  be  created  by  the  use  of  words  which  de- 
clare that  it  is  given  or  devised  for  a  particular  purpose,  or  with 
a  particular  intention,  or  on  payment  of  a  certain  sum."  But  in 
Stanley  v.  Colt,  5  Wall.  119,  165,  it  is  said:  "Mr.  Sugden,  speak- 
ing of  conditions,  observes  that  what  by  the  old  law  was  deemed 
a  devise  on  condition,  would  now,  perhaps  in  almost  every  case, 
be  construed  a  devise  in  fee  upon  trust;  and  by  this  construc- 
tion instead  of  the  heir  taking  advantage  of  the  condition  broken, 
the  cestui  que  trust  can  compel  an  observance  of  the  trust  by 
suit  in  equity." 

As  to  voluntary  grants,  it  is  said  in  Olcott  v.  Gabert,  86  Tex. 
123  (23  S.  W.  985) :  "It  may  be  that  the  consideration  expressed 
should  be  deemed  nominal,  and  the  conveyance  should  be  treated 
as  voluntary,  and  it  is  true  that  a  condition  will  be  more  readily 
implied  in  a  deed  of  that  character  than  in  one  which  rests  upon 
a  valuable  consideration.  Yet  the  rule  is  well  recognized  that 
the  mere  declaration  of  the  uses  to  which  the  granted  premises 
are  to  be  applied  do  not  ordinarily  import  a  condition. 

"Where  the  declared  purpose  for  which  the  property  shall  be 
used  is  a  matter  that  will  enure  to  the  special  benefit  of  the 
grantor,  the  courts  are  more  inclined  to  treat  the  conveyance  as 
conditional  than  when,  as  in  this  case,  the  use  is  for  the  benefit 


§260]  ESTATES    ON    CONDITION.  339 

In  Rawson  v.  School  District,  the  language  of  the  court 
(at  p.  675)  seems  to  imply  that  there  was  no  enforceable 
trust,  but  only  a  duty  of  imperfect  obligation,  to  carry  out 
the  wishes  of  the  grantor.  And  the  same  may  be  said  of  most 
of  the  cases  cited  in  the  previous  section.  On  the  other  hand, 
in  Solder  v.  Trinity  Church,  supra,  the  court  said :  "Taking 
into  consideration  the  title  of  the  grantors,  the  purposes  of 
the  grant,  and  the  fact  that  the  expression  is  'in  trust  never- 
theless and  on  condition  always,'  the  fair  construction  of  the 
instrument  is  that  the  parties  intended  the  title  to  be  in 
trust."  And  see  to  the  same  effect,  Mills  v.  Davison,  54  N.  J. 
Eq.  659  (35  L.  E.  A.  113). 

In  Brown  v.  Caldwell,  supra,  the  court  say:  "Taking  into 
consideration  the  whole  instrument,  and  the  purposes  of  the 
grant,  and  the  absence  of  any  clause  of  reentry  or  forfeiture, 
it  seems  to  me  that  the  grantor  intended  the  title  to  be  in 
trust,  and  not  upon  condition."   In  Raley  v.  Umatilla  County, 

of  a  special  class  of  persons,  or  of  the  public  at  large.  In  this 
case  it  does  not  appear  that  the  maintenance  of  a  church  upon 
the  lot  was  a  matter  especially  advantageous  to  the  railroad  com- 
pany which  made  the  grant."  And  see  Long  v.  Moore,  19  Tex. 
Civ.  App.  363  (48  S.  W.  43);  Neeley  v.  Hoskins,  84  Me.  386,  § 
258,  supra;  Brown  v.  Caldivell,  23  W.  Va.  187. 

In  Faith  v.  Bowles,  86  Md.  13  (63  Am.  St.  Rep.  488)  it  is  said: 
"The  grant  in  the  case  now  under  consideration  was  not  a 
gratuity,  nor  merely  voluntary,  but  made  for  a  full  consideration 
of  the  estate  conveyed.  This  being  the  case,  and  there  being  no 
qualifying  terms  indicating  that  the  grantors  intended  to  retain 
any  benefit  to  themselves,  or  to  impress  upon  the  estate  conveyed 
any  restriction  as  to  its  alienation,  we  find  nothing  to  justify 
the  appellee's  contention"  [viz.,  that  there  was  a  condition  sub- 
sequent]. And  it  would  seem  that  there  was  no  enforceable 
trust.  But  while  the  presence  of  a  consideration  may  be  potent 
against  the  intention  to  create  either  a  condition  or  trust,  it  is 
not  believed  that  its  absence  has  very  great  weight  in  favor  of 
such  an  intention.  See  Eilpatrick  v.  Mayor  of  Baltimore,  81  Md. 
179  (48  Am.  St.  Rep.)  509,  where  the  court  say:  "We  are  dis- 
posed to  place  but  little  importance  upon  the  fact  that  the  con- 
sideration in  the  deed  is  merely  nominal."  But  see  Ecroyd  v. 
CoggesJiall,  21  R.  I.  1  (79  Am.  St.  Rep.  741). 


340  REAL    PROPERTY.  [Chap.  13 

supra,  it  is  said,  on  rehearing:  "If  it  were  being  so  used 
[i.  e.,  the  land  for  other  than  "educational  purposes"]  it  is 
probable  that  the  heirs  of  the  grantor  have  such  an  interest 
[presumably  by  way  of  covenant  or  trust]  that  they  might 
restrain  the  unauthorized  use  of  the  thing  granted." 

In  Ecroyd  v.  Coggeshall,  supra,  it  is  said  (citing  Greene  v. 
O'Connor,  18  E.  I.  60)  :  "This  language,  at  the  most,  only 
has  the  effect  to  create  a  confidence  or  trust  in  connection 
with  the  land  conveyed,  or  to  raise  an  implied  agreement  on 
the  part  of  the  grantee  to  use  the  land  only  for  the  purpose 
specified." 

§  261.  Construction  of  Conveyances  Providing  for  Sup- 
port of  the  Grantor  or  a  Third  Person  by  the  Grantee. — Such 
provisions  depend  for  their  construction  upon  the  words  used, 
and  may  assume  the  form  of  a  true  condition  subsequent,  a 
personal  covenant,  a  covenant  coupled  with  a  charge  or  lien 
on  the  land,  or  both  a  condition  and  a  covenant  at  the  same 
time.1 

1  Construction  of  Support  Deeds. — In  Lohman  v.  Crawford,  99 
Va.  688,  the  language  of  a  deed  by  aunt  to  nephew  expressed  the 
consideration  as  follows:  "For  and  in  consideration  of  the  love 
and  affection  the  said  [grantor]  has  for  the  said  [grantee],  his 
remaining  with  her  the  said  [grantor],  the  taking  care  of  her  so 
long  as  she  may  live,  in  sickness  as  well  as  in  health,  the  pay- 
ment of  all  her  just  debts  that  may  be  unpaid  at  her  decease; 
and  the  further  consideration  of  one  dollar  cash  in  hand  paid, 
the  receipt  of  which  is  hereby  acknowledged."    The  court  said: 

"There  are  no  words  in  the  deed  under  consideration  creating 
a  condition  subsequent,  and  nothing  to  suggest  that  such  a  con- 
dition was  contemplated  by  the  parties;  nor  is  there  a  clause 
providing  for  a  re-entry  by  the  grantor.  The  provision  in  the  deed 
that  [the  grantee]  should  remain  with  his  aunt,  and  take  care 
of  her  in  sickness  and  in  health  so  long  as  she  lived  was  nothing 
more  than  a  covenant  on  his  part  that  he  would  render  those 
services  in  consideration  for  the  conveyance  of  the  land  to  him." 

But  the  court  held  that  as  the  remedy  at  law  on  such  a  cove- 
nant was  wholly  inadequate,  a  court  of  equity  would  take  juris- 
diction, and  would  annul  the  deed,  and  put  the  parties  in  the 
same  position  they  were  in  before  it  was  made,  citing  Wampler 


§§260,261]  ESTATES    ON    CONDITION.  341 

Thus  in  Thomas  v.  Record,  47  Me.  500  (74  Am.  Dec.  500), 
the  deed  ran  as  follows :  "I  give  the  said  [grantee]  this  deed 
on  the  following  conditions,  to-wit :  the  said  [grantee]  shall 
maintain  and  support  myself  [the  grantor]  and  [the  wife  of 

v.  Wampler,  30  Gratt.  454.  As  to  the  jurisdiction  of  a  court  of 
equity  to  rescind  an  executed  covenant  under  such  circumstances, 
see  7  Va.  Law  Reg.  557,  note  to  Lohman  v.  Crawford,  by  Prof. 
Lile,  where  it  is  said:  "The  ruling  of  the  court  may  doubtless 
be  justified  on  the  ground  of  the  peculiar  character  of  the  ar- 
rangement between  the  parties,  and  the  impossibility  of  doing 
complete  justice  in  cases  of  this  sort  except  by  rescission." 

On  the  other  hand,  in  Glocke  v.  Glocke  (Wis.)  89  N.  W.  118, 
where  there  was  a  conveyance  of  land  by  father  to  son  in  con- 
sideration of  support,  etc.,  the  court  gave  the  same  relief  as  in 
Lohman  v.  Crawford,  but  not  on  the  ground  of  right  of  rescission 
of  a  covenant,  but  by  reason  of  the  forfeiture  incurred  by  the 
son  by  breach  of  a  condition  subsequent.  This  "condition  subse- 
quent," as  is  frankly  confessed,  was  obtained  "by  rules  of  judicial 
construction  peculiar  to  courts  of  equity;"  and  it  is  said: 

"If  any  of  the  situations  where  equity,  by  construction  so- 
called,  may  arbitrarily,  if  necessary,  turn  a  transaction  into  some- 
thing entirely  different  from  what  the  parties  thereto  expressed 
in  their  writings  in  order  to  do  justice,  can  be  supported  on  prin- 
ciple, the  one  under  consideration  can."  .  .  .  "Such  contracts 
have  come  to  be  looked  upon  as  almost,  if  not  quite,  presump- 
tively improvident  in  their  inception,  and  in  that  view  courts  of 
equity  have  gone  to  great  lengths  to  remedy  the  mischief  by 
reading  out  of  them  a  condition,  when  a  covenant  only  is  ex- 
pressed, upon  which  may  be  founded  on  principle  a  right  of 
rescission,  where  justice  requires  it  for  the  protection  of  the 
weak,  the  exercise  of  which  will  undo  the  mischief  ab  initio,  and 
restore  the  parties,  substantially,  to  their  original  situation." 
And  it  is  added: 

"In  such  a  case,  the  court  does  not  lend  its  jurisdiction  to  effect 
a  forfeiture.  The  forfeiture,  or  rescission,  as  it  is  sometimes 
called,  is  effected  by  the  act  of  the  grantor,  by  his  reentry,  or  its 
equivalent,  for  condition  broken.  Equity  lends  its  aid  to  quiet 
the  title.  It  lends  its  aid  to  set  aside  the  conveyance.  ...  It 
establishes  the  title  to  the  property  in  accordance  with  the  facts, 
and  clears  away  all  apparently  interfering  writings  and  records, 
giving  such  other  relief  as  may  be  necessary  to  fully  accomplish 
that  end." 


342  REAL    PROPERTY.  [Chap.  13 

the  grantor]  during  the  time  of  their  natural  lives,"  etc. ;  and 
in  construing  it  the  court  adopted  the  language  employed  in 
Gray  v.  Blancliard,  8  Pick.  284 :  "The  words  are  apt  to  create 
a  condition;  there  is  no  ambiguity,  no  room  for  construction; 
and  they  cannot  be  distorted  so  as  to  convey  a  different  sense 
from  that  which  was  probably  the  intent  of  the  parties."  And 
it  was  added  that  the  absence  of  a  clause  of  reentry  in  the 
deed  did  not  affect  the  right  of  the  grantor  or  his  heirs  to  en- 
ter and  take  advantage  of  a  breach  of  the  condition.  And  see 
Cross  v.  Carson,  8  Blackf.  (Ind.)  138  (44  Am.  Dec.  742). 

On  the  other  hand,  in  Weir  v.  Simmons,  55  Wis.  639  (13 
N.  W.  873),  the  construction  of  a  condition  subsequent  was 
rejected,  although  the  deed  contained  express  words  of  con- 
dition. The  court  said :  "Whether  a  provision  in  a  deed  or 
will  which,  as  a  part  of  the  consideration,  requires  the  pay- 
ment of  money  to  third  persons  [or,  of  course,  to  the  grantor] 
by  the  grantee  or  devisee  therein,  within  a  fixed  time  after  the 
title  and  right  of  possession  vest  in  him,  will  be  construed  to 
be  a  charge  upon  the  land,  or  whether  it  will  be  construed  to 
be  a  condition  subsequent,  depends  on  the  intent  of  the  par- 
ties to  the  conveyance,  or  of  the  testator  in  case  of  a  devise; 
and  it  will  always  be  construed  to  make  a  charge  upon  the 
premises,  unless  a  different  intent  is  clearly  apparent,  or  in 
the  case  of  a  deed  the  language  is  so  clear  as  to  leave  no  room 
for  construction  or  doubt." 

So  in  the  following  cases  the  construction  of  support-deeds 
was  held  to  be  a  charge  on  the  land,  and  not  a  condition  subse- 
quent :  Poivnal  v.  Taylor,  10  Leigh,  172 ;  34  Am.  Dec.  725  (ap- 
proved in  Campau  v.  Chene,  1  Mich.  400.  And  see  Bates  v. 
Swiger,  40  W.  Va.  420;  21  S.  E.  874)  ;  Meyer  v.  Swift,  73 
Tex.  367  (11  S.  W.  378)  ;  Richards  v.  Reeves,  149  Ind.  427 
(47  N".  E.  232)  ;  McClure  v.  Cool,  39  W.  Va.  579  (20  S.  E. 
612).  And  see  Studdard  v.  Wells,  120  Mo.  25  (25  S.  W.  201), 
where  the  language  was :  "The  said  [grantee]  is  to  pay  the 
taxes  on  the  said  land,  and  has  to  support  the  said  [grantors] 
during  their  natural  life-time."  The  court  said:  "No  apt  or 
appropriate  words  to  create  a  condition  are  used;  nor  is  there 


§§261,262]  ESTATES    ON    CONDITION.  343 

any  clause  of  forfeiture,  or  reentry,  or  reverter.  We  are  un- 
able to  find  anything  in  this  deed,  whether  we  treat  it  as  a 
gift  or  made  for  a  money  consideration,  which  will  justify 
us  in  saying  it  is  a  deed  upon  condition  subsequent."  As  the 
action  was  ejectment,  it  was  unnecessary  to  decide  whether 
the  obligation  of  support,  called  by  the  court  a  "stipulation," 
constituted  a  charge  on  the  land. 

For  an  example  of  a  support-deed  construed  to  contain  a 
merely  personal  covenant,  not  operating  as  a  specific  lien  on 
the  property,  see  Taylor  v.  Lanier,  3  Murphy  (X.  C.)  98  (9 
Am.  Dec.  599).  For  an  example  of  such  deed  containing  both 
a  covenant  and  condition  subsequent,  thereby  giving  the 
grantee  the  double  remedy  of  action  on  the  covenant  or  entry 
for  breach  of  condition,  see  Jackson  v.  Topping,  1  Wendell 
(N.  Y.)  388  (19  Am.  Dec.  515). 

§  262.  Construction  of  Deeds  Containing  Building  Restric- 
tions.— Such  restrictions  are  lawful  (see  §  266,  note),  and 
may  be  imposed  by  way  of  condition  subsequent,  covenant,  or 
reservation.  And  the  effect  of  these  may  be  to  give  a  right 
merely  personal  to  the  grantor,  or  to  create  a  right  in  the  na- 
ture of  an  easement,  appurtenant  to  land  retained  by  the 
grantor,  and  enforceable  by  any  owner  of  such  land  against 
the  grantee,  or  against  his  assignees  with  notice  actual  or  con- 
structive. For  full  discussion  of  building  restrictions,  see  5 
Am.  &  Eng.  Ency.  Law  (2d  ed.),  p.  2;  and  note  to  Ladd  v. 
City  of  Boston,  21  Am.  St.  Eep.  484-508.  It  is  proposed 
here  to  give  a  few  illustrations  of  the  form  such  restrictions 
may  assume,  and  their  effect  inter  partes,  and  as  to  third 
persons.1 

1  Building  Restrictions.  By  and  Against  Whom  Enforceable. 
—  (1)  By  Whom.  As  stated  in  the  text,  this  depends,  not  on  the 
form  of  the  restriction,  but  on  the  intent  of  the  grantor.  If  this 
be  to  make  a  restriction  for  his  personal  benefit,  then  it  does  not 
enure  to  the  benefit  of  others;  if  for  the  benefit  of  land  retained 
by  him,  then  it  may  be  enforced  by  those  who  succeed  to  him  in 
the  ownership  of  such  land.  And  even  though  he  disposes  of  all 
his  land  at  one  time,  yet  if  it  be  divided  into  parcels,  and  con- 


344  REAL    PROPERTY.  [Chap.  13 

In  Gray  v.  Blanchard,  8  Pick.  (Mass.)  283,  a  deed  convey- 
ing land  in  fee-simple  contained  this  restriction:  "Provided, 
however,  that  this  conveyance  is  upon  the  condition  that  no 
windows  shall  be  placed  in  the  north  wall  of  the  house  afore- 
said, or  of  any  house  to  be  erected  on  the  premises,  within 
thirty  years  from  the  date  hereof."  The  court  said : 

veyed  to  different  purchasers  by  restrictive  deeds,  in  pursuance 
of  a  general  plan,  the  intent  may  be  to  give  mutual  rights,  in  the 
nature  of  easements,  to  all  such  purchasers,  and  they  will  be 
enforceable  in  equity  by  and  against  one  another  accordingly.  As 
is  said  by  Bigelow,  C.  J.,  in  Parker  v.  Nightingale,  6  Allen  (Mass.) 
341   (83  Am.  Dec.  632): 

"The  effect  of  such  restrictions,  inscribed  in  contemporaneous 
conveyances  of  the  several  parcels,  under  the  circumstances  al- 
leged in  the  bill,  was  to  confer  on  each  owner  a  right  or  interest 
in  the  nature  of  a  servitude,  in  all  the  lots  situated  on  the  same 
street,  which  were  conveyed  subject  to  the  restriction.  Thus  it 
entered  into  the  consideration  which  each  purchaser  paid  for  his 
land,  either  by  enhancing  its  price  in  view  of  the  benefit  secured 
to  him  in  the  restraint  imposed  on  adjoining  owners,  or  in  lessen- 
ing its  value  in  consequence  of  the  limitation  affixed  to  its  use." 

For  cases  in  which  the  restriction  was  held  personal  to  the 
grantor,  see  Badger  v.  Boardman,  16  Gray  (Mass.)  559;  Jewell 
v.  Lee,  14  Allen  (Mass.)  145  (92  Am.  Dec.  744);  Sharp  v.  Ropes, 
110  Mass.  381;  Skinner  v.  Shepard,  130  Mass.  180;  Mulligan  v. 
Jordan,  50  N.  J.  Eq.  363  (24  Atl.  543) ;  Summers  v.  Beeler,  90  Md. 
474  (78  Am.  St.  Rep.  446);  Safe  Deposit,  etc.,  Co.  v.  Flaherty,  91 
Md.  489   (46  Atl.  1009). 

For  cases  in  which  the  restriction  was  held  not  personal  to  the 
grantor,  see  Barrow  v.  Richard,  8  Paige  Ch.  351  (35  Am.  Dec. 
713);  Whitney  v.  Union  R.  Co.  11  Gray  (Mass.)  359  (71  Am.  Dec. 
715);  Gibert  v.  Peteler,  38  N.  Y.  165  (97  Am.  Dec.  785);  Halle  v. 
Newbold,  69  Md.  270  (14  Atl.  662);  Graves  v.  Deterling,  120  N. 
Y.  447;  Ladd  v.  City  of  Boston,  151  Mass.  585  (21  Am.  St.  Rep. 
481);  Graham  v.  Hite,  93  Ky.  481  (20  S.  W.  506);  Roberts  v. 
Porter,  100  Ky.  130  (37  S.  W.  485). 

2.  Against  Whom.  Of  course,  if  a  restrictive  covenant  runs 
with  the  land,  it  is  binding  on  all  who  succeed  to  the  title, 
whether  they  have  notice  of  it  or  not.  As  to  when  such  covenants 
do  or  do  not  run  with  the  land,  see  5  Am.  &  Eng.  Ency.  Law  (2d 
ed.)  3;  note  to  Morse  v.  Garner,  47  Am.  Dec.  574.  But  it  is  not 
necessary  in  order  to  render  a  restrictive  covenant  enforceable 


§262]  ESTATES    ON    CONDITION.  345 

"  'This  conveyance  is  upon  the  condition'  can  mean  nothing 
more  nor  less  than  their  natural  import;  and  we  cannot  help 
the  folly  of  parties  who  consent  to  take  estates  upon  onerous 
conditions,  by  converting  conditions  into  covenants."  And  for 
a  breach  of  the  condition,  by  placing  two  windows  in  the  north 
wall,  it  was  held  that  the  grantor  was  entitled  to  enter  and 
enforce  a  forfeiture,  and  this  against  a  successor  in  title  to 
the  grantee.  The  court  said :  "It  is  a  harsh  proceeding  on  his 
part,  but  it  is  according  to  his  contract,  which  must  be  en- 
forced if  he  insists  on  it." 

So  in  Clapp  v.  Wilder,  176  Mass.  332,  where  the  grantor 
owned  two  adjoining  lots — lot  A,  on  which  was  a  store  build- 
ing, and  lot  B,  on  which  was  his  dwelling— the  deed  of  lot 

against  a  purchaser  with  notice  that  it  should  run  with  the  land. 
In  the  language  of  Bigelow,  C.  J.,  in  Whitney  v.  Union  R.  Co.  11 
Gray,  359  (71  Am.  Dec.  715): 

"By  taking  an  estate  from  a  grantor  with  notice  of  a  valid 
agreement  made  by  him  with  the  former  owner  of  the  property 
concerning  the  mode  of  occupation  and  use  of  the  estate  granted, 
the  purchaser  is  bound  in  equity  to  fulfil  such  agreement  with 
the  original  owner,  because  it  would  be  unconscientious  and  in- 
equitable for  him  to  set  aside  and  disregard  the  legal  and  valid 
acts  and  agreements  of  his  vendor  in  regard  to  the  estate,  of 
which  he  had  notice  when  he  became  its  purchaser.  In  this 
view  the  precise  form  or  nature  of  the  covenant  or  agreement  is 
quite  immaterial.  It  is  not  essential  that  it  should  run  with  the 
land.  A  personal  covenant  or  agreement  will  be  held  valid  and 
binding  in  equity  on  a  purchaser  taking  the  estate  with  notice. 
It  is  not  binding  on  him  merely  because  he  stands  as  assignee  of 
the  party  who  made  the  agreement,  but  because  he  has  taken  the 
estate  with  notice  of  a  valid  agreement  concerning  it,  which  he 
cannot  equitably  refuse  to  perform." 

And  see  Parker  v.  Nightingale,  supra;  Hodge  v.  Sloan,  107  N.  Y. 
244;  note  to  Ladcl  v.  City  of  Boston,  21  Am.  St.  Rep.  486-'7;  Tardy 
v.  Creasy,  81  Va.  553,  dissenting  opinion  of  Lewis,  P.  That  notice 
to  the  purchaser  may  be  actual  or  constructive,  see  5  Am.  & 
Eng.  Ency.  Law,  9;  Appeal  of  Townsend,  68  Conn.  358  (36  Atl. 
815);  Quatman  v.  McCray,  128  Cal.  285  (60  Pac.  855).  On  the 
whole  subject  of  notice,  see  note  to  Lodge  v.  Simonton,  23  Am. 
Dec.  47-53;  note  to  Parker  v.  Conner,  45  Am.  Rep.  184-190. 


346  REAL    PROPERTY.  [Chap.  13 

A  read  as  follows:  "And  this  conveyance  is  made  upon  the 
express  conditions  that  the  said  Wilder  and  Hills  [the  gran- 
tees], their  heirs  and  assigns,  shall  never  erect  any  building 
nearer  the  street  line  of  said  land  [lot  A]  than  the  store 
building  now  thereon."  Afterwards  the  grantor  sold  lot  B, 
and  its  owner  asked  for  an  injunction  to  restrain  the  owner 
of  lot  A  from  erecting  a  building  twenty  feet  nearer  the  line, 
in  breach  of  the  restriction;  but  it  was  held  (three  judges 
dissenting)  that  the  restriction  was  a  condition,  and  not  a 
covenant,  and  moreover  that  the  condition  was  made  solely 
for  the  personal  benefit  of  the  grantor,  and  not  for  the  benefit 
of  the  adjoining  lot  (B)  retained  by  him.  It  was  declared 
that  the  only  remedy  for  this  breach  was  an  entry  by  the 
grantor  or  his  heirs  or  devisees,  and  the  injunction  was  re- 
fused. 

On  the  other  hand,  the  cases  are  numerous  in  which  the 
restriction,  even  though  couched  in  the  form  of  a  condition, 
has,  from  the  terms  of  the  grant,  or  from  the  situation  and 
the  surrounding  circumstances,  been  construed  as  in  effect  a 
covenant,  and  as  intended  for  the  benefit  of  the  other  land 
of  the  grantor  retained  by  him,  and  so  available,  as  an  equi- 
table easement,  for  and  against  the  purchasers  of  such  land. 

Thus  in  Ayling  v.  Kramer,  133  Mass.  12,  it  is  said  by  Mor- 
ton, J . :  "We  are  of  opinion  that  the  so-called  conditions  in 
the  deed  of  Carter  were  not  intended  or  understood  by  the 
parties  to  be  technical  conditions,  a  breach  of  which  would 
work  a  forfeiture  of  the  estate.  They  were  intended  to 
regulate  the  mode  in  which  the  grantee  might  use  and  enjoy 
the  land,  and  are  to  be  construed  as  restrictions  .  .  .  im- 
posed as  a  part  of  a  general  scheme  of  improvement  ,which 
might  be  enforced  in  equity  by  the  owners  of  the  adjoining 
estates,  and  created  equitable  easements,  which  constituted  a 
breach  of  the  covenants  against  encumbrances."  And  see 
Beals  v.  Case,  138  Mass.  138;  Hopkins  v.  Smith,  162  Mass. 
444;  Cassidy  v.  Mason,  171  Mass.  507;  Post  v.  Weil,  115 
K.  Y.  361  (12  Am.  St.  Eep.  809)  ;  Clark  v.  Martin,  49  Pa. 
St.  289;  Watrous  v.  Allen,  57  Mich.  362  (24  K  W.  104). 


§§  262, 263]  ESTATES    ON    CONDITION.  347 

For  an  example  of  a  restriction  by  reservation,  see  Peck 
v.  Coiucai/,  119  Mass.  546,  where  the  words  were:  "With 
this  express  reservation,  that  no  building  is  to  be  erected  by 
the  said  Joseph  B  [grantee],  his  heirs  or  assigns,  upon  the 
land  herein  conveyed."  It  was  held  that  this  restriction  was 
for  the  benefit  of  the  land  retained  by  the  grantor  and  en- 
forceable by  a  subsequent  purchaser  of  such  land.  The  court 
said :  "A  prohibition  against  building  on  the  land  sold  would 
be  obviously  useful  and  beneficial  to  this  lot  [that  retained], 
giving  it  the  benefit  of  better  light  and  air  and  prospect; 
this  is  its  apparent  purpose,  while  it  would  be  of  no  appre- 
ciable advantage  for  any  other  purpose.  The  fair  inference 
is  that  the  parties  intended  to  create  this  easement  or  servi- 
tude for  the  benefit  of  the  adjoining  estate.  We  are  there- 
fore of  opinion  that  it  was  not  a  mere  personal  right  in 
Ensign  [the  grantor],  but  an  easement  appurtenant  to  the 
estate  which  he  conveyed  to  the  plaintiff." 

§  263.  Construction  of  Deeds  Prohibiting  the  Sale,  etc.,  of 
Intoxicating  Liquors  on  the  Premises. — Such  prohibitions  are 
lawful  (see  §  266,  note),  and  may  be  in  the  form  of  a  con- 
dition subsequent  (the  usual  case)  or  of  a  covenant.  In 
Watrous  v.  Allen,  57  Mich.  362  (58  Am.  Eep.  363)  the  pro- 
hibition was  in  this  form,  an  unmistakable  condition : 

"Provided  always,  and  this  contract  [conveyance]  and  the 
estate  in  said  premises  hereby  created  is  subject  to  the  express 
condition  that  if  the  parties  of  the  second  part,  their  heirs 
and  assigns,  shall  at  any  time  sell  or  keep  for  sale  upon  said 
above  granted  premises,  or  knowingly  permit  any  person 
under  them  so  to  sell  or  keep  for  sale,  any  spirituous  or  in- 
toxicating liquors,  whether  distilled  or  fermented,  the  entire 
title  and  estate  in  and  to  said  premises  hereby  sold  and 
created  shall  cease ;  and  the  title  to  the  said  premises  shall 
thereupon  at  once  revert  to  and  vest  in  the  parties  of  the  first 
part,  their  heirs  and  assigns  forever ;  and  [it]  shall  be  lawful 
for  the  said  parties  of  the  first  part,  their  heirs  and  assigns, 
to  reenter  upon  the  said  premises,  and  said  parties  of  the 


348  REAL    PROPERTY.  [Chap.  13 

second  part,  their  heirs  and  assigns,  and  every  person  claim- 
ing under  him  or  them,  wholly  to  remove,  expel  or  put  out." 

For  iron-clad  conditions  almost  identical  with  the  above, 
see  Smith  v.  Barrie,  56  Mich.  314  (58  Am.  Eep.  391)  ;  Jenls 
v.  Palowski,  98  Mich.  110  (39  Am.  St.  Eep.  522).  For 
other  cases  of  conditions  subsequent  in  varying  forms,  see 
Plumb  v.  Tubbs,  41  N".  Y.  442;  Cornell  v.  Springs  Co.  100 
IT.  S.  55;  Chippewa  Lumber  Co.  v.  Tremper,  75  Mich.  36 
(4.  L.  R.  A.  373) ;  Sioux  City,  <&c,  R.  Co.  v.  Singer,  49 
Minn.  301  (32  Am.  St.  Rep.  554;  15  L.  R.  A.  751)  ;  Odessa, 
&c,  Co.  v.  Dawson,  5  Tex.  Civ.  App.  487   (24  S.  W.  576). 

On  the  other  hand,  in  Sutton  v.  Head,  86  Ivy.  156  (9  Am. 
St.  Rep.  274),  the  deed  contained  this  clause,  which  was  held 
to  be  a  covenant  running  with  the  land:  "No  intoxicating 
liquors  are  to  be  sold  on  said  premises  in  less  quantities  than 
five  gallons."  And  in  Post  v.  Weil,  115  N.  Y.  361  (12  Am.  St. 
Rep.  809;  5  L.  R,  A.  422),  though  the  deed  contained  apt 
words  of  condition,  viz. :  "Provided  always  and  these  presents 
are  upon  this  express  condition,  that  the  aforesaid  premises 
shall  not,  nor  shall  any  part  thereof,  or  any  buildings  thereon 
erected  or  to  be  erected,  be  at  any  time  hereafter  used  or 
occupied  as  a  tavern  or  public  house  of  any  kind,"  it  was 
held  that  this  was  a  covenant  running  with  the  land,  and  not 
a  "condition  subsequent."  And  see  Atlantic  Dock  Co.  v. 
Leavitt,  54  N.  Y.  35  (13  Am.  Rep.  556)  ;  Hall  v.  Solomon, 
61  Conn.  476  (29  Am.  St.  Rep.  218). 

§  264.  Void  Conditions;  Precedent  or  Subsequent. — A  con- 
dition may  be  void  by  reason  of  (1)  impossibility.  (2)  il- 
legality,   (3)    repugnancy,  or    (4)    uncertainty. 

As  to  the  effect  of  a  void  condition,  the  law  makes  a  sharp 
discrimination  according  as  the  condition  is  precedent  or  sub- 
sequent. If  the  void  condition  be  precedent,  the  estate  con- 
tingent thereon  is  also  void,  and  the  grantee  shall  take  no- 
thing by  the  grant;  for  an  estate  can  neither  commence  nor 
increase  on  a  void  condition.  On  the  other  hand,  if  the  void 
condition  be  subsequent,  the  condition  only  is  void,  and  the 


§§263-265]  ESTATES    ON    CONDITION.  349 

estate  already  vested  in  the  grantee  is  absolute  and  inde- 
feasible. The  general  principle  is  thus  stated  by  Riely,  J., 
in  Burdis  v.  Burdis,  96  Ya.  81 : 

"The  law  is  clear  that  where  a  condition  precedent  is 
annexed  to  a  devise  of  real  estate,  and  its  performance  is  or 
becomes  impossible,  the  devise  fails,  although  there  is  no 
default  or  laches  on  the  part  of  the  devisee  himself;  but  if 
the  condition  is  subsequent,  and  its  performance  becomes  im- 
possible, the  rule  is  different.  In  that  case,  the  estate  will 
not  be  defeated  or  forfeited,  but  the  devisee  will  hold  the 
property  by  an  absolute  title,  as  if  no  condition  had  been 
annexed  to  the  devise." 

The  law  is  the  same  as  to  a  deed,  and  this  whether  the  con- 
dition be  void  for  impossibility,  or  for  any  other  reason.  See 
on  the  whole  subject,  2  Tho.  Co.  18-21;  Shepp.  Touch. 
132-3;  1  Prest.  Est.  476;  2  Bl.  Com.  156-7;  2  Min.  Ins. 
(4th  ed.)  279;  6  Am.  &  Eng.  Ency.  Law,  506;  Vanhorne  v. 
Dorranee,  2  Dall.  (Pa.)  304,  317;  Myers  v.  Daviess,  10  B. 
Mon.  (Ky.)  394;  Davis  v.  Gray,  16  Wall.  203,  229;  note  to 
Burdis  v.  Burdis  (Ya.)  70  Am.  St.  Pep.  829-837:  EUicott 
x.  EUicott,  90  Md.  321  (45  Atl.  183;  48  L.  E.  A.  58). 

§  265.  Conditions  Void  Because  Impossible. — In  this  case 
the  difference  in  effect  between  a  condition  precedent  and 
subsequent  is  thus  stated  by  Preston  (Estates,  p.  476)  :  "It 
is  nece.— ary  that  the  event  should  happen  to  give  a  title 
under  this  contingent  or  conditional  limitation  [i.  e.,  grant 
on  a  condition  precedent].  Though  the  event  on  which  the 
estate  is  to  vest  should  become  impossible  by  the  act  of  God, 
yet  the  gift  would  fail ;  while  if  a  condition  be  annexed  to  an 
estate  already  vested  [grant  on  condition  subsequent],  and 
the  condition  became  impossible,  the  estate  would  be  dis- 
charged from  the  condition,  and  become  absolute." 

Under  the  above  doctrine,  it  matters  not  whether  the  im- 
possibility exists  at  the  time  of  the  grant,  or  arises  after- 
wards ;  or  whether  it  exists  in  the  nature  of  things,  as  a  nat- 
ural impossibility,  or  is  caused  by  the  act  of  God,  by  the  law. 


350  REAL    PROPERTY.  [Chap.  13 

or  by  the  conduct  of  a  third  person.  As  to  the  parties  to  the 
grant,  the  grantee  may  be  excused  from  the  performance  of 
a  condition  subsequent  by  the  conduct  of  the  grantor;  but  if 
the  grantee  should  cause  the  impossibility  of  a  condition 
subsequent  imposed  on  him,  he  could  not  thus  excuse  its  non- 
performance (6  Am.  &  Eng.  Ency.  Law,  506).  And  it  has 
been  held  that  if  the  grantor  who  has  imposed  a  condition 
precedent  renders  its  performance  unnecessary  or  impossible, 
this  excuses  it,  and  the  estate  in  the  land  shall  vest  in  the 
grantee  without  performance.  Jones  v.  Chesapeake,  &c,  B. 
Co.,  14  W.  Va.  514,  523.     See,  contra,  2  Min.  Ins.  265,  279.1 

1  Performance  of  Condition  Precedent  Made  Impossible  by  the 
Grantor. — In  Jones  v.  Chesapeake,  &c,  R.  Co.,  supra,  it  is  said: 
"But  whether  the  condition  be  precedent  or  subsequent,  if  the  act 
of  the  party  who  imposed  the  condition  makes  its  performance 
unnecessary  or  impossible,  the  condition  is  no  longer  binding, 
and  the  estate  conveyed  by  the  deed  in  which  it  is  contained  is 
discharged  therefrom." 

This  case  is  the  only  one  found  by  the  writer  in  which  it  has 
been  held  that  an  estate  in  land  granted  on  a  condition  precedent 
can  vest  and  take  effect  without  performance  of  the  condition. 
The  action  was  ejectment,  and  the  defence  was  that,  though  the 
condition  precedent  on  which  the  land  was  granted  for  right  of 
way  to  the  railway  company  had  not  been  performed,  its  per- 
formance had  been  rendered  unnecessary  by  the  act  of  the  grant- 
or himself.  The  condition  was  that  the  grantee  should  first  pro- 
cure the  assent  to  the  grant  of  a  third  person,  to  whom  the  grant- 
or had  already  contracted  to  convey  the  land.  But  the  grantor 
himself  obtained  an  abandonment  of  the  contract  by  the  third 
person;  and  it  was  held  that  this  rendered  the  condition  of  no 
force,  that  its  performance  was  unnecessary  for  the  security  of 
the  grantor,  and  that  the  estate  vested  in  the  grantee  free  from 
condition. 

It  will  be  observed  that  in  this  case  the  condition  did  not, 
strictly  speaking,  become  impossible;  for  the  third  person's  con- 
sent might  still  have  been  obtained,  however  unnecessary  after 
he  had  ceased  to  have  an  interest  in  the  land.  And  a  distinction 
might  be  suggested  between  a  condition  precedent,  still  perhaps 
of  vital  importance,  rendered  impossible  by  the  grantor,  and  a 
case  in  which  the  act  of  the  grantor  rendered  the  condition  use- 
less, and  its  performance  an   idle  ceremony.    In  such  case  the 


§265]  ESTATES    ON    CONDITION.  351 

For  an  example  of  a  condition  precedent  whose  perform- 
ance was  made  impossible  by  the  act  of  God,  see  Den  v.  Mes- 
senger, 33  N".  J.  Law.  499.  Here  the  devise  was  as  follows: 
"After  the  death  or  upon  the  marriage  of  my  said  wife,  I  do 
give,  devise,  and  bequeath  all  the  estate  real  and  personal 
hereinbefore  given  to  my  said  wife  to  Henry  Clew,     .     .     . 

condition  might  be  said  to  have  ceased  to  exist,  as  being  itself 
conditioned  on  the  continuance  of  the  situation  which  caused  it 
to  be  imposed. 

But  if  a  condition  precedent  has  not  ceased  to  exist,  it  is  said 
by  Preston  (Estates,  476)  that  even  a  release  by  the  grantor  will 
not  cause  the  estate  to  vest.  "As  the  condition  or  contingency 
must  happen  before  the  grantee  can  have  any  right,  a  release, 
or  any  other  act  of  the  grantor  or  his  heirs,  except  a  new  con- 
veyance, will  not  complete  the  title."  And  see  2  Tho.  Co.  (18). 

In  Jones  v.  Chesapeake,  &c,  R.  Co.,  however,  no  distinction  is 
taken  according  as  the  grantor's  act  renders  performance  impos- 
sible or  unnecessary.  And  in  note  to  Burdis  v.  Burdis,  70  Am. 
St.  Rep.  831,  this  case  is  cited  with  approval.  And  see  2  Tuck. 
Com.  (97),  where  it  is  said:  "When  a  condition,  whether  prece- 
dent or  subsequent,  becomes  impossible  by  the  act  of  the  party 
creating  it,  the  estate  becomes  absolute." 

In  Jones  v.  R.  Co.,  supra,  only  two  cases  are  relied  on  by  the 
court,  viz.,  Jones  v.  Bramblet,  1  Scam.  (111.)  276,  a  case  of  con- 
dition subsequent,  and  Young  v.  Hunter,  6  N.  Y.  203,  a  case  of  con- 
dition precedent  annexed  to  a  contract.  As  to  contracts,  there  is 
no  doubt  that  the  law  is  that  he  who  prevents  the  performance 
of  a  condition  precedent  excuses  it,  and  is  liable  as  if  perform- 
ance had  been  made.  Jones  v.  Walker,  13  B.  Mon.  (Ky.)  163; 
Baltimore,  cGc,  R.  Co.  v.  Polly,  14  Gratt.  447;  McCormick  v.  Ham- 
ilton, 23  Gratt.  561.  If  the  law  as  to  contractual  rights  is  appli- 
cable to  the  vesting  of  estates,  on  the  ground  of  estoppel  or 
otherwise,  there  is  no  difficulty  in  allowing  the  estate  to  vest 
when  the  grantor  prevents  performance  of  a  condition  precedent, 
on  the  ground  that  he  will  not  be  heard  to  say  that  the  condition 
was  not  performed.  And  see  Shepp.  Touch.  133,  where  it  is  said 
in  an  interpolation  by  Preston:  "But  in  cases  of  conditions  prece- 
dent, the  grantor  cannot,  merely  by  his  own  act,  as  refusal  to 
accept  money  tendered,  prevent  the  estate  from  vesting;  tender 
and  refusal  would  be  tantamount  [so  far  as  performing  the  con- 
dition is  concerned]  to  payment." 


352  REAL    PROPERTY.  [Chap.  13 

upon  the  express  condition  that  he,  the  said  Henry  Clew,  do 
remain  with  me  and  my  wife  during  our  lives,  and  the  life 
of  the  survivor  of  us,  and  continue  to  conduct  himself  in  a 
proper  manner."  It  was  held  that  the  condition  was  prece- 
dent; and  as  its  performance  by  Henry  Clew  was  made  im- 
possible by  his  death  in  the  lifetime  of  the  widow,  no  estate 
vested  in  him,  and  the  testator's  heir  took  the  land.  And  see 
City  of  Stockton  v.  Weber,  98  Cal.  441  (33  Pac.  332). 

The  cases  in  which  impossibility  of  performance  of  a  con- 
dition subsequent  has  made  the  estate  absolute  in  the  grantee 
or  devisee  are  numerous.  See  Nunnery  v.  Carter,  5  Jones 
Eq.  (N.  C.)  370  (78  Am.  Dec.  231)  ;  Parker  v.  Parker.  123 
Mass.  584;  Burdis  v.  Burdis,  96  Va.  81  (condition  subse- 
quent of  support  by  devisee  of  third  person  excused  by  death 
of  such  person  in  lifetime  of  the  testator.  §  251,  note)  ;  Leon- 
ard v.  Smith,  80  la.  194  (45  N.  W.  762  (condition  subse- 
quent of  furnishing  "pleasant  home"  made  impossible  by  the 
conduct  of  the  grantor  himself) ;  Bryant  v.  Dungan,  92  Ky. 
626  (36  Am.  St.  Eep.  618)  (condition  subsequent  of  sup- 
port, etc.,  of  grandmother  made  impossible  by  her  refusal  to 
accept);  Harrison  v.  Harrison,  105  Ga.  517  (70  Am.  St. 
Rep.  60)  (condition  subsequent  that  one  devisee  "remain  on 
place"  made  impossible  by  the  cruelty  of  co-devisee).  And 
see  Davis  v.  Gray,  16  Wall,  202-30  (impossibility .  due  to 
war)  ;  Ricketts  v.  Louisville,  &c,  R.  Co.  91  Ky.  221  (31  St. 
Eep.  176)  (alleged  want  of  legal  ability) ;  Union  Pac.  R.  Co. 
v.  Cook,  98  Fed.  281  (certain  use  of  lot  excused  because  lot 
washed  away  by  river). 

§  266.  Conditions  Void  Because  Unlawful. — When  such  a 
condition  is  precedent,  no  estate  can  vest  in  the  grantor 
without  performance,  for  this  would  ignore  the  condition; 
nor  can  it  vest  by  performance,  for  such  performance  is 
against  the  law.  When,  however,  the  condition  is  subsequent, 
the  condition  is  void,  and  the  estate  of  the  grantee  absolute. 
As  stated  in  2  Tucker's  Commentaries  (93)  : 

"The  object  of  the  principle  is  to  remove  all  temptation  to 


§§265,266]  ESTATES    ON    CONDITION.  353 

the  illegal  act.  Thus  in  the  case  of  a  condition  precedent,  if 
I  grant  to  a  man  that  if  he  commits  a  murder  he  shall  have 
a  fee,  the  estate  granted  as  well  as  the  condition  is  void ;  and 
though  the  grantee  should  perform  the  condition  by  commit- 
ting the  murder,  he  could  not  demand  the  estate.  Thus, 
then,  the  temptation  to  the  sin  is  removed,  because  he  cannot 
recover  the  wages  of  his  iniquity,  even  if  he  does  the  deed. 
On  the  other  hand,  in  case  of  a  condition  subsequent,  if  I 
give  to  A  an  estate  in  fee  on  condition  that  unless  he  kills 
B,  the  gift  shall  be  void;  here  the  estate  being  deemed  abso- 
lute, and  the  condition  only  being  void,  the  temptation  to 
commit  the  crime  is  removed  by  assuring  the  estate  to  the 
grantee  whether  he  perform  the  condition  or  not;  and  at  the 
same  time  the  grantor  loses  what  he  had  given  with  vicious 
intention,  and  fails  in  the  attainment  of  his  illegal  pur- 
pose."1 

1  Conditions  Lawful  ob  Unlawful. — It  is  well  settled  that  con- 
ditions forbidding  the  sale,  manufacture,  etc.,  of  intoxicating 
liquors  on  the  premises  conveyed  are  lawful,  and  not  repugnant 
to  the  grant,  nor  in  unreasonable  restraint  of  trade.  See  Plumb 
v.  Tubbs,  41  N.  Y.  442;  Smith  v.  Barrie,  56  Mich.  314  (56  Am. 
Rep.  391);  Sioux  City,  &c,  R.  Co.  v.  Singer,  40  Minn.  301  (32 
Am.  St.  Rep.  554)  ;  Cowell  v.  Springs  Co.,  100  U.  S.  55. 

But  in  Chippewa  Lumber  Co.  v.  Tremper,  75  Mich.  36  (4  L.  R. 
A.  373)  it  is  held  that  such  a  condition  will  not  be  enforced  when 
inserted  for  a  dishonest  purpose,  and  to  the  end  that  the  grantor 
may  obtain  a  monopoly  in  the  business,  and  others  be  restrained 
therefrom.  And  see  Jenks  v.  Paloioski,  98  Mich.  110  (39  Am.  St. 
Rep.  522). 

As  to  building  restrictions,  they  were  attacked  in  Gray  v. 
Blanchard,  8  Pick.  (Mass.)  283,  as  being  idle  and  useless,  and  so 
against  the  policy  of  the  law,  and  also  as  being  repugnant  to  the 
estate  granted.  But  these  objections  were  not  sustained.  And  see 
Whitney  v.  Union,  etc.,  R.  Co..  11  Gray  (Mass.)  359  (71  Am.  Dec. 
715),  where  it  is  said: 

"Every  owner  of  real  property  has  the  right  so  to  deal  with  it 
as  to  restrain  its  use  by  his  grantees  within  such  limits  as  to 
prevent  its  appropriation  to  purposes  which  will  impair  the 
value,  or  diminish  the  pleasure  of  the  enjoyment,  of  the  land 
which  he  retains.   The  only  restriction  on  this  right  is  that  it  be 

23 


354  REAL    PROPERTY.  [Chap.  13 

The  above  principles  are  so  well  settled  that  citation  of 
authority  is  hardly  necessary.  They  are  recognized  as  to 
conditions  precedent  in  Ransdell  v.  Boston,  172  111.  439  (43 
L.  R.  A.  526),  where,  however,  the  condition  precedent  (pro- 
curement of  divorce  in  a  pending  suit)  was  held  not  illegal. 

For  examples  of  illegal  conditions  subsequent  held  to  be 
void,  and  not  to  affect  the  estate  already  vested,  see  Board, 
&c.  v.  Young,  59  Fed.  96;  Scovill  v.  McMahon,  62  Conn.  378 
(36  Am.  St.  Eep.  350)  ;  21  L.  E.  A.  58  (condition  subsequent, 
as  to  use  of  land  for  cemetery,  made  illegal  by  law  forbidding 
further  interment  therein)  ;  Conrad  v.  Long,  33  Mich.  78 
(condition  subsequent  in  a  devise  to  a  married  woman  that 
she  shall  not  live  with  her  husband) ;  Maddox  v.  Maddox,  11 
Graft.  804  (bequest  on  condition  subsequent  of  religious 
qualification).  And  see  Trumbull  v.  Gibbons,  2  Zab.  (1ST.  J.) 
117  (51  Am.  Dec.  253). 

For  instances  of  unlawful  conditions  in  restraint  of  mar- 
riage, or  of  alienation  of  land,  see  §  268  and  §  270,  infra. 

§  267.    Conditions  Void  Because  Repugnant  or  Uncertain. 

— Under  repugnancy  (a  branch  of  restraint  on  alienation,  to 
be  treated  separately  hereafter)  two  cases  may  be  cited  of 
void  conditions  subsequent. 

exercised  reasonably,  with  due  regard  to  public  policy,  and  with- 
out creating  any  unlawful  restraint  of  trade."  And  see  note  to 
Lacld  v.  City  of  Boston  (Mass.)  21  Am.  St.  Rep.  481.  As  to  un- 
lawful restraint  of  trade,  see  Tardy  v.  Creasy,  81  Va.  553. 

In  several  of  the  Western  States,  there  are  statutes  as  to  "nomi- 
nal" conditions,  as  follows:  "When  any  conditions  annexed  to  a 
grant  or  conveyance  of  lands  are  merely  nominal,  and  evince  no 
intention  of  actual  or  substantial  benefit  to  the  party  to  whom, 
or  in  whose  favor,  they  are  to  be  performed,  they  may  be  wholly 
disregarded,  and  a  failure  to  perform  the  same  shall  in  no  case 
operate  as  a  forfeiture  of  the  lands  conveyed  subject  thereto." 
For  the  construction  of  this  statute,  see  Smith  v.  Barrie,  56  Mich. 
314  (56  Am.  Rep.  391) ;  Sioux  City,  rf-c,  R.  Co.  v.  Singer,  49  Minn. 
301   (32  Am.  St.  Rep.  554). 

As  to  conditions  in  restraint  of  marriage  and  of  alienation  of 
land,  see  §§  268,  270,  infra. 


.§§266,267]  ESTATES    ON    CONDITION.  355 

In  Moore  v.  Sanders,  15  S.  C.  446  (40  Am.  Eep.  703) 
the  testatrix  devised  land  to  her  son  in  fee-simple  and  then 
provided,  by  a  "divided  clause,"  as  follows:  "But  should  he 
die  without  leaving  a  will,  then  the  whole  to  go  to  my  grand- 
children, share  and  share  alike."  It  was  held  that  the  con- 
dition was  void  for  repugnancy,  and  the  son's  estate  absolute. 

The  court  said : 

"The  performance  of  the  condition  would  require  Moore 
[the  son]  to  die  in  possession  of  the  real  estate  devised  to 
him.  In  no  other  way  could  he  leave  a  will  disposing  of  it. 
The  condition  is  then  in  direct  and  positive  restriction  on 
his  power  of  alienation.  The  will  invests  him  with  a  fee,  but 
the  condition  strikes  at  the  very  substance  of  the  fee,  and  if 
valid  would  take  away  and  destroy  its  most  essential  and  im- 
portant quality — the  power  of  sale.  A  fee  may  be  defeated 
by  a  condition  which  is  independent  of  the  estate  granted, 
upon  the  happening  of  which  the  estate  is  lost;  but  a  condi- 
tion the  effect  of  which  is  to  cut  down  the  fee  to  a  less  estate 
is  void  because  repugnant  to  the  fee." 

In  Hardy  v.  Galloway,  111  N.  C.  519  (32  Am.  St.  Eep. 
828),  it  is  said  of  a  condition  subsequent:  "The  restric- 
tion is  certainly  inconsistent  with  the  ownership  of  the 
fee,  as  well,  as  it  would  seem,  against  public  policy.  The  right 
to  repurchase  is  of  indefinite  extent  as  to  time  (it  being 
reserved  to  the  grantors,  their  heirs,  and  assigns),  and  may 
be  exercised  whenever  the  property  is  sold,  although  no 
amount  is  fixed  upon  as  purchase-money.  In  other  words, 
we  have  an  estate  in  fee  without  the  power  to  dispose  of  or 
encumber  it  unless  first  offering  it,  for  no  definite  price,  to 
the  grantors,  their  heirs,  and  assigns.  The  condition  is  re- 
pugnant to  the  grant,  and  therefore  void." 

As  to  uncertainty,  it  was  contended  by  counsel  in  Cassem 
v.  Kennedy,  147  111.  664  (35  N".  E.  738)  that  a  condition 
precedent  was  void  for  that  reason,  and  so  the  estate  devised 
on  such  condition  became  absolute.  The  court  held  that  the 
condition  was  valid,  and,  being  precedent,  the  estate  could 
not  vest  without  performance;  but  it  was  declared  that,  even 


356  REAL    PROPERTY.  [Chap.  13 

if  the  condition  had  been  void  for  uncertainty,  the  result 
would  have  been  the  same,  and  the  estate  void,  as  in  other 
cases  of  void  conditions  precedent.     The  court  said: 

"If,  as  contended,  the  language  of  the  testatrix,  in  express- 
ing the  conditions  on  which  the  gift  was  made,  is  so  uncertain 
as  to  render  those  conditions  void,  it  is  difficult  to  see  how 
the  devise  can  be  upheld.  That  the  testatrix  did  not  intend 
to  make  the  gift  without  conditions  is  as  clearly  expressed  as 
the  gift  itself." 

On  the  other  hand,  in  Martin  v.  Ballou,  13  Barb.  (1ST.  Y.) 
119,  it  was  contended  that  the  words  "by  his  paying  to  the 

other  heirs  the  sum  of ,"  attached  to  several  devises  of 

land,  constituted  a  condition  precedent,  and  being  void  for 
uncertainty  prevented  the  vesting  of  the  estates.  The  court, 
however,  construed  the  condition  (if  any  at  all)  to  be  subse- 
quent, and  upheld  the  devises,  saying:  "If  the  condition  was 
subsequent,  the  cases  before  cited  show  that  if  it  is  or  becomes 
impossible,  the  estate  will  not  be  defeated  or  forfeited.  An 
impossible  condition  [subsequent]  is  the  same  as  none;  it 
is  void,  and  there  can  be  no  breach.  It  leaves  the  will  the 
same  as  if  the  void  clause  or  sentence  was  stricken  out,  and 
then  of  course  it  devises  an  absolute  estate  in  fee  simple." 
And  see  Brothers  v.  McCurdy,  36  Pa.  St.  407  (78  Am.  Dec. 
388). 

§  268.    Conditions  in  Kestraint  of  Marriage. — For  the  law 

on  this  subject,  see  2  Jarman  on  Wills  (6th  Am.  ed.  by 
Bigelow)  (885),  et  seq;  2  Pom.  Eq.  (2nd  ed.)  §  933;  note 
to  Coppage  v.  Alexander  (Ky.),  38  Am.  Dec.  156-161;  note 
to  Ghapin  v.  Cooke  (Conn.),  84  Am.  St.  Pep.  147-152; 
note  to  Phillips  v.  Ferguson  (Va.),  1  L.  P.  A.  837. 

Conditions  in  restraint  of  marriage  may  be  valid  or  void; 
they  may  be  precedent  or  subsequent;  and  they  may  be 
attached  to  gifts  of  realty  or  personalty.  In  the  main,  the 
doctrines  already  stated  as  to  valid  or  void  conditions  are 
applicable  to  those  in  restraint  of  marriage;  but  there  are 
notable  diversities  when  such  conditions  are  annexed  to  be- 


§§267,268]  ESTATES    ON    CONDITION.  357 

quests  of  personalty.  This,  as  has  been  often  pointed  out, 
is  due  to  the  influence  of  the  civil  law  (by  which  legacies  were 
governed),  which  declared  all  conditions  in  restraint  of  mar- 
riage void;  whereas  by  the  common  law  such  conditions  are 
valid,  unless  the  restraint  imposed  is  total  or  unreasonable. 
In  the  language  of  Pomeroy:  "The  system  which  has  been 
developed  [as  to  legacies]  is  a  partial  compromise  between 
the  technical  common  law  rules  concerning  conditions,  and 
the  doctrines  of  the  Roman  law  which  made  void  all  attempts 
to  restrict  the  perfect  freedom  of  marriage;  and,  like  most 
compromises,  it  has  some  incongruous  features."  2  Pom.  Eq., 
§  933.  And  see  Scott  v.  Tyler,  2  Bro.  Ch.  432 ;  StacJcpole  v. 
Beaumont,  3  Yes.  Jr.  89;  Ilogan  v.  Curtin,  88  N".  Y.  162.1 

1  Reasonable  or  Unreasonable  Restraint  of  Marriage  by  the 
Common  Law. — See  2  Jarm.  Wills  (Bigelow's  ed.)  (885)  et  seq.; 
2  Pom.  Eq.  (2nd  ed.)  §  933;  note  to  Coppage  v.  Alexander  (Ky.), 
38  Am.  Dec.  156. 

A  total  restraint  of  marriage  is  considered  reasonable  when  im- 
posed on  a  widow  or  widower  (as  to  whom  see  below);  but  in 
all  other  cases  such  restraint  is  unreasonable  and  void.  There 
are  dicta,  however,  to  the  effect  that  no  restraint  of  marriage  is 
void  when  attached  to  a  gift  of  land  (see  Com.  v.  Stauffer,  10  Pa. 
St.  350  (51  Am.  Dec.  489);  Cornell  v.  Lovett,  35  Pa.  St.  100; 
Chapin  v.  Cooke,  73  Conn.  72  (46  Atl.  282);  but  it  may  now  be 
considered  as  settled  (at  least  outside  of  Pennsylvania  and  Con- 
necticut) that  the  policy  of  the  law  forbids  a  total  restraint  of 
marriage  (unless  a  second  marriage),  whether  attached  to  realty 
or  personalty.  See  authorities  at  the  beginning  of  this  note,  and 
also  Mann  v.  Jackson,  84  Me.  400  (30  Am.  St.  Rep.  358);  Smythe 
v.  Smythe,  90  Va.  633;  Jones  v.  Jones,  1  Q.  B.  D.  279. 

But  though  the  restraint  on  marriage  be  partial,  it  will  still  be 
void  unless  it  is  reasonable.  In  Phillips  v.  Ferguson,  85  Va.  509, 
513,  it  is  said:  "No  inflexible  rule  on  the  subject  is  deducible 
from  the  cases,  many  of  which  are  irreconcilable.  The  law,  how- 
ever, as  we  have  seen,  recognizes  as  valid  those  conditions  in  re- 
straint of  marriage  which  are  just,  fair,  and  reasonable;  and 
what  is  such  a  condition  must,  to  a  great  extent,  be  determined 
upon  the  circumstances  of  each  particular  case."  And  in  Maddox 
v.  Maddox,  11  Gratt.  804,  808,  it  is  said:  "Where  they  are  of  so 
rigid    a    character,    or    made    so    dependent   on    peculiar    circum- 


358  REAL    PROPERTY.  [Chap.  13 

The  departures  in  the  law  of  legacies  from  the  common- 
law  rules  as  to  conditions  relate  to  the  effect  (1)  of  a  con- 
dition precedent,  void  as  in  total  or  unreasonable  restraint 

stances,  as  to  operate  [as]  a  virtual  though  not  a  positive  re- 
straint on  marriage,  or  unreasonably  restrict  the  party  in  the 
choice  of  marriage,  they  will  be  ineffectual  and  utterly  disre- 
garded." 

Upon  these  principles,  in  Phillips  v.  Ferguson,  supra,  it  was 
held  that  a  condition  imposed  by  the  will  of  a  father  that  his 
daughter  should  not  marry  "in  T.  W.  Phillips'  family"  was  rea- 
sonable and  valid.  But  in  Maddox  v.  Maddox,  supra,  a  condition 
was  held  void  which  forbade  a  woman  to  marry  any  one  except  a 
member  of  the  Society  of  Friends  (Quakers),  there  not  being 
more  than  five  or  six  marriageable  male  members  of  the  Society 
in  the  neighborhood.  And  in  this  case,  the  English  cases  of 
Houghton  v.  Houghton,  1  Molloy,  612  (valid  condition  "not  to 
marry  contrary  to  the  order  and  established  rules  of  the  people 
called  Quakers")  and  Perrin  v.  Lyon,  9  East  170  (valid  condition 
not  to  marry  a  Scotchman)  are  spoken  of  as  perhaps  inappli- 
cable in  a  new  country  like  the  United  States.  The  decision  in 
Maddox  v.  Maddox  is  also  placed  on  the  ground  that  the  condi- 
tion (in  effect)  that  the  legatee  should  remain  a  member  of  a 
certain  religious  sect  was  contrary  to  the  policy  of  Virginia  as  to 
religious  freedom. 

In  Reuff  v.  Coleman,  30  W.  Va.  171  (3  S.  E.  597),  a  condition 
that  a  girl  should  not  marry  under  twenty-one  is  sustained;  and 
in  Young  v.  Furse,  8  De  G.,  McN.  &  G.  756,  a  condition  that  a 
daughter  should  not  marry  before  twenty-eight  is  upheld.  And 
in  Hogan  v.  Curtin,  88  N.  Y.  162,  a  condition  reducing  a  legacy 
from  $16,000  to  $5,000,  "in  the  event  of  my  said  daughter,  Mary 
Ann,  marrying  against  the  consent  of  my  said  executors  and  her 
said  mother,"  was  held  valid,  and  that  the  consent  of  the  execu- 
tors alone  was  insufficient. 

On  the  other  hand,  a  condition  that  a  woman  should  not  marry 
until  the  age  of  fifty,  would  be  unreasonable  and  void.  1  Story, 
Eq.,  §  253.  So,  too,  it  is  unreasonable  to  prescribe  that  a  woman 
shall  not  marry  a  man  unless  he  is  seised  of  an  estate  in  fee- 
simple,  or  of  freehold  property  of  the  yearly  value  of  £500  ster- 
ling. Keiley  v.  Monck,  3  Ridg.,  P.  C.  205.  So  it  has  been  held  a 
void  condition  that  a  woman  should  not  marry  a  man  of  a  par- 
ticular profession  (1  Eq.  Cas.  Abr.  110) ;  but  in  Jenner  v.  Turner, 
16  Ch.  D.  188  (37  Moak  139)  a  condition  imposed  by  a  sister  on 


§  268]  ESTATES    ON    CONDITION.  359 

of  marriage;  and  (2)  of  a  condition  subsequent,  valid  as  in 
partial  and  reasonable  restraint  of  marriage. 

In  the  first  case,  as  has  been  seen,  it  is  the  doctrine  of  the 
common  law,  that  though  a  condition  precedent  be  void,  yet 
the  estate  is  also  void,  and  the  grantee  or  devisee  takes  no- 
thing. But  in  a  bequest  of  personalty,  though  the  condition 
precedent  in  restraint  of  marriage  be  void,  the  legacy  is  not 
void,  and  the  bequest  takes  effect  as  if  the  condition  had  not 
been  imposed.  This  is  by  the  rule  of  the  civil  law  which  (in 
direct  opposition  to  the  common  law)  treats  a  void  condition, 
even  though  a  precedent,  as  a  nullity,  and  a  gift  so  conditioned 
as  absolute.  Maddox  v.  Maddox,  11  Graft.  804;  Phillips  v. 
Ferguson,  85  Va.  509  (17  Am.  St.  Rep.  78);  Hawke  v. 
Euyart,  30  Neb.  149  (27  Am.  St.  Eep.  391)  ;  Ransdell  v. 
Boston,  172  111.  439  (43  L.  E.  A.  526)  ;  note  to  Nunnery  v. 
Carter  (K.  C),  78  Am.  Dec.  234-6. 

The  second  departure  referred  to  above  is  known  as  the  doc- 

a  brother  that  he  should  not  marry  "a  domestic  servant,  or  a 
person  who  has  been  a  domestic  servant,"  was  sustained,  follow- 
ing Perrin  v.  Lyon,  supra. 

As  to  second  marriages  it  is  now  settled  that  a  condition  in 
total  restraint  is  valid,  equally  as  to  a  widow  and  widower;  and 
this  whether  the  restraint  imposed  is  by  one  spouse  on  the  other, 
or  by  a  third  person  on  either.  See  authorities  cited  at  the  be- 
ginning of  this  note,  and  also  Allen  v.  Jackson,  1  Ch.  D.  399  (15 
Moak,  815);  Newton  v.  Marsden,  2  J.  &  H.  356;  Coppage  v.  Alex- 
ander, 2  B.  Mon.  (Ky.)  313  (38  Am.  Dec.  153);  Com.  v.  Stauffer, 
10  Pa.  St.  350,  51  Am.  Dec.  489  (decision,  however,  placed  by 
court  on  other  and  untenable  ground);  Dumey  v.  Schwffler,  24 
Mo.  170  (69  Am.  D-c.  422);  Little  v.  Birdwell,  21  Tex.  597  (73 
Am.  Dec.  242) ;  Bostick  v.  Blades,  59  Md.  231  (43  Am.  Rep.  548) ; 
Bennett  v.  Packer,  70  Conn.  357  (39  Atl.  738);  Chapin  v.  Cooke, 
73  Conn.  72  (46  Atl.  282). 

In  Chapin  v.  Cooke,  supra,  it  is  said  that  a  condition  in  re- 
straint of  a  second  marriage  was  equally  valid  by  the  civil  and 
the  common  law.  It  follows  that  the  doctrine  of  in  terrorem  has 
no  application  to  such  conditions,  and  that  a  limitation  over  is 
not  necessary  to  their  validity.  See  Mann  v.  Jackson,  84  Me.  400 
(30  Am.  St.  Rep.  358);  Knight  v.  Mahoney,  152  Mass.  523  (over- 
ruling Parsons  v.  Winslow,  6  Mass.  169). 


360  REAL    PROPERTY.  [Chap.  13 

trine  of  in  terrorem.  By  the  common  law,  a  valid  condition 
subsequent  must  be  performed,  or  it  is  a  ground  of  forfeiture ; 
and  it  is  immaterial  whether  there  is  a  limitation  over  or  not. 
But  by  the  doctrine  of  in  terrorem,  as  applied  to  bequests  of 
personalty  upon  condition  subsequent  in  restraint  of  mar- 
riage, though  the  restraint  be  partial  and  reasonable,  yet  the 
condition  is  inoperative,  and  the  legacy  already  vested  remains 
unaffected  by  it,  unless  on  the  breach  of  the  condition  there 
is  a  limitation  over  to  a  third  person,  or  a  special  direction 
that  the  forfeited  legacy  shall  fall  into  the  residuum.1 

1  Effect  of  a  Limitation  Over  as  Negativing  Condition  in  Ter- 
rorem.— In  Lloyd  v.  Branton,  3  Merivale,  108,  117,  it  is  said  by 
Sir  William  Grant,  M.  R.:  "Different  reasons  have  been  assigned 
by  different  judges  for  this  operation  of  a  devise  [bequest]  over. 
Some  have  said  that  it  afforded  a  clear  manifestation  of  the  in- 
tention of  the  testator  not  to  make  the  declaration  of  forfeiture 
merely  in  terrorem,  which  might  otherwise  have  been  presumed. 
Others  have  said  that  it  was  the  interest  of  the  devisee  [legatee] 
over  which  made  the  difference,  and  that  [thereby]  the  clause 
ceased  to  be  merely  a  clause  of  forfeiture,  and  became  a  condi- 
tional limitation,  to  which  the  court  was  bound  to  give  effect. 
Whatever  might  be  the  ground  of  decision,  it  was  held  that 
where  the  testator  only  declared  that  in  case  of  marriage  without 
consent  [for  example]  the  legatee  should  forfeit  what  had  been 
before  given,  but  did  not  say  what  should  become  of  the  legacy, 
such  declaration  would  remain  wholly  inoperative." 

As  the  civil  law  was  applied  to  legacies,  and  as  by  this  law 
all  conditions  in  restraint  of  marriage  were  void,  the  true  in- 
quiry is,  not  why  the  condition  subsequent  in  partial  restraint 
was  void  without  a  limitation  over,  but  why  such  limitation  over 
rendered  valid  and  enforceable  an  otherwise  void  restraint.  Per- 
haps the  reason  was  that  the  English  judges  were  anxious  to  es- 
cape from  the  alien  doctrine  of  the  civil  law,  and  to  enforce  the 
condition,  but  they  hesitated  to  do  so  in  case  of  a  vested  legacy, 
except  in  favor  of  a  limitation  over. 

It  is  now  settled  that  the  doctrine  of  in  terrorem  does  not  apply 
to  a  condition  precedent,  in  partial  and  reasonable  restraint  of 
marriage,  attached  to  a  legacy;  and  unless  such  condition  be  per- 
formed the  legacy  (following  the  common  law  doctrine)  will  not 
vest,   although   there   is  no   alternative   limitation.     2   Pom.   Eq. 


§268]  ESTATES    ON    CONDITION.  361 

When  there  is  no  limitation  over,  conditions  subsequent 
in  reasonable  restraint  of  marriage  are  called  in  terrorem, 
because,  in  the  language  of  Lord  Eldon,  in  Clarice  v.  Parker, 
19  Ves.  1,  13,  "they  are  supposed  to  alarm  persons,  when 
we  [i.  e.,  lawyers]  know  they  contain  no  terror  whatsoever." 
And  see  Hogan  v.  Curtin,  88  IS.  Y.  162,  171,  where  Andrews, 
J.,  says  of  in  terrorem  that  it  is  "merely  a  convenient  phrase 
adopted  by  judges  to  stand  in  place  of  a  reason  for  refusing 
to  give  effect  to  a  valid  condition."  The  doctrine,  however, 
is  well  settled.  Coppage  v.  Alexander,  2  B.  Mon.  (Ky.)  313 
(38  Am.  Dec.  153)  ;  Hotz's  Estate,  38  Pa.  St.  422  (80  Am. 
Dec.  490);  Randall  v.  Marble,  69  Me.  310  (31  Am.  Rep. 
281);  Maddox  v.  Maddox,  11  Graft.  804;  Phillips  v.  Fer- 
guson, 85  Va.  509;  Fifield  v.  Van  Wyclc,  94  Va.  557  (64 
Am.  St.  Eep.  745) ;  Beuff  v.  Coleman,  30  W.  Va.  171    (3 

(2nd  ed.),  p.  1329,  n.  1;  1  Story  Eq.,  §  290;  Phillips  v.  Ferguson, 
85  Va.  509. 

On  the  other  hand,  though  the  condition  be  subsequent,  yet  if 
it  is  void  by  the  civil  and  common  law  alike,  as  being  in  total  or 
unreasonable  restraint  of  marriage,  the  legacy  is  absolute,  and 
the  condition  is  nugatory,  in  spite  of  a  limitation  over  upon  its 
breach.  And  it  is  to  be  noted  that  the  doctrine  of  in  terrorem  has 
no  application  to  a  grant  or  devise  of  real  estate  (these  never 
having  been  subject  to  the  civil  law),  nor  even  a  legacy  charged 
on  land.  Scott  v.  Tyler,  2  Bro.  Ch.  432;  2  Jarm.  Wills  (891); 
Hogan  v.  Curtin,  88  N.  Y.  162. 

But  this  doctrine  of  in  terrorem  (condition  of  a  bugbear 
merely)  applies  not  only  to  conditions  in  restraint  of  marriage, 
but  also  to  conditions  annexed  to  bequests  of  personal  estate 
forbidding  litigation  over  a  will;  but  it  is  admitted  in  these  two 
classes  of  cases  only.  As  to  them,  however,  "it  must  be  regarded  as 
settled,"  as  said  in  Fifield  v.  Van  Wyclc,  94  Va.  557,  563,  "that 
such  conditions  are  merely  in  terrorem  and  inoperative  when  an- 
nexed to  bequests  of  personal  estate,  where  there  is  no  gift  over 
on  breach  of  the  conditions."    See  64  Am.  St.  Rep.  755,  note. 

As  to  what  amounts  to  "a  gift  over,"  see  note  to  Coppage  v. 
Alexander,  38  Am.  Dec.  159;  Maddox  v.  Maddox,  supra;  Phillips 
v.  Ferguson,  supra;  Fifield  v.  Van  Wyclc,  supra;  and  Hogan  v. 
Curtin,  supra. 


362  REAL    PROPERTY.  [Chap.  13 

S.  E.  597)  ;  Bennett  v.  Packer,  70  Conn.  357  (39  Atl.  739)  ; 
Chopin  v.  Cooke,  73  Conn.  72  (84  Am.  St.  Rep.  189). 

§  269.  Summary  of  the  Effect  of  Conditions  in  Wills  in 
Restraint  of  Marriage. 

A.  Conditions  precedent. 

(1)  Real  estate. 

(a)  Restraint  total  or  unreasonable.  The  condition  is 
void;  but  being  precedent,  the  estate  also  is  void  and  cannot 
vest  either  with  or  without  performance.1 

1  Gift  of  Land  on  Condition  Precedent  in  Total  or  Unreason- 
able Restraint  of  Marriage. — In  2  Pom.  Eq.  §  933,  it  is  said:  "A 
condition  precedent  annexed  to  a  devise  of  land,  even  if  in  com- 
plete restraint  [of  marriage],  will,  if  broken,  be  operative,  and 
prevent  the  devise  from  taking  effect."  This  would  imply  that  if 
the  condition  of  celibacy  be  not  broken,  the  devisee  may,  by  per- 
formance of  the  condition,  acquire  the  land.  And  so  Judge  Story 
says  (1  Eq.  Jur.,  §  289):  "If  the  condition  [precedent]  regard 
real  estate,  and  be  in  general  restraint  of  marriage,  there,  al- 
though it  is  void,  yet,  as  we  have  seen,  if  there  is  not  a  compli- 
ance with  it,  the  estate  will  never  arise  in  the  devisee."  Does  this 
mean  that  if  there  is  a  compliance  with  such  condition,  then  the 
estate  will  arise  and  take  effect  in  the  devisee? 

The  above  form  of  stating  the  law  as  to  the  effect  of  a  condi- 
tion precedent  in  total  or  unreasonable  restraint  of  marriage,  an- 
nexed to  a  gift  of  land,  is  common  in  the  cases,  but  always  as  a 
dictum,  as  no  decision  has  been  found  in  point.  It  is  believed, 
however,  to  be  erroneous,  if  it  is  meant  to  suggest  that  the  law 
will  permit  an  estate  in  land  to  vest  by  the  performance  of  such 
a  condition;  and  that  the  true  doctrine  is  laid  down  in  Shep- 
pard's  Touchstone  (132),  where  it  is  said:  "In  all  these  cases 
[i.  e.,  of  unlawful  conditions,  among  which  the  author  names 
"such  conditions  as  are  against  the  liberty  of  the  law,  as  that  a 
man  shall  not  marry"],  if  the  condition  be  precedent,  the  condi- 
tion and  estate  both  are  void;  for  an  estate  can  neither  commence 
nor  increase  upon  an  unlawful  condition." 

And  it  may  be  observed  that  even  if  public  policy  allowed  an 
estate  in  land  to  vest  on  the  performance  of  a  condition  prece- 
dent in  total  restraint  of  marriage,  this  condition  could  not  be 
performed  in  the  devisee's  lifetime,  and  the  estate  could  not  vest 
until  after  the  devisee's  death.    And  then  for  whose  benefit?    If 


§§268,269]  ESTATES    ON    CONDITION.  363 

(&)   Bestraint  partial  and  reasonable.    The  condition  must 
be  performed,  or  the  estate  can  never  vest. 
(2)   Personal  estate. 

(a)  Bestraint  total  or  unreasonable.  Then  the  condition 
only  is  void,  and  the  gift  is  good. 

(b)  Bestraint  partial  and  reasonable.  The  condition  is 
good  and  must  be  performed,  or  the  gift  cannot  take  effect. 

B.  Conditions  subsequent. 

(1)  Real  estate. 

(a)  Bestraint  total  or  unreasonable.  The  condition  is 
void,  and  though  not  performed,  the  land  is  not  liable  to  for- 
feiture. 

(6)  Bestraint  partial  and  reasonable.  The  condition  is 
good,  and  if  broken  the  land  is  liable  to  forfeiture.1 

a  life  estate,  it  would  have  already  expired.  If  of  inheritance, 
it  could  only  go  by  descent  to  collateral  relatives  of  the  devisee 
(who  by  supposition  does  not  marry),  or  to  those  named  in  his 
or  her  will,  and  the  devisee  could  receive  no  personal  benefit. 
See  an  analogous  case,  Lewis  v.  Lewis  (Conn.),  51  Atl.  854. 

It  is  probable  that  the  language  which  has  been  criticised 
above,  true  as  to  valid  conditions  precedent  in  restraint  of  mar- 
riage, was  carelessly  applied  also  to  such  conditions  when  not 
valid.  And  no  doubt  the  declaration  that  as  to  land  such  unlaw- 
ful condition,  if  broken,  would  prevent  the  estate  from  vesting, 
was  intended  to  emphasize  the  fact  that  as  to  personalty  such 
condition  has  not  this  effect;  and,  though  precedent  and  unper- 
formed, the  legacy  takes  effect. 

As  to  whether  a  total  or  unreasonable  restraint  of  marriage  is 
to  be  considered  as  illegal,  or  not  illegal  but  merely  void  (see 
Harriman  on  Contracts,  pp.  126-8),  it  is  held  in  Massachusetts 
that  "contracts  which  are  void  at  common  law,  because  they  are 
against  public  policy,  like  contracts  which  are  prohibited  by 
statute,  are  illegal  as  well  as  void."  This  was  said  of  a  wagering 
contract;  and  the  law  is  so  laid  down  in  Bishop  v.  Palmer,  146 
Mass.  469,  as  to  a  contract  in  unreasonable  restraint  of  trade. 
The  same  doctrine  seems  applicable  to  a  contract  in  total  or  un- 
reasonable restraint  of  marriage;  but  in  King  v.  King  (Ohio),  59 
N.  E.  Ill,  it  is  held  that  such  contract  is  not  illegal  but  merely 
void. 

1  Limitation  or  Condition  in  Gifts  Dependent  on  Marriage. — 


364  REAL    PROPERTY.  [Chap.  13 

(2)  Personal  estate. 

(a)  Restraint  total  or  unreasonable.  The  condition  is 
void,  and  the  gift  is  absolute. 

(&)  Restraint  partial  and  reasonable.  If  there  is  a  gift 
over,  the  condition  is  good,  and  if  broken,  the  limitation  over 
takes  effect.    But  if  there  is  no  gift  over,  the  condition  is  void, 

For  full  explanation  of  marriage  as  a  limitation  or  condition,  see 
§  254,  supra.  It  may  be  added  here  that  a  limitation  during 
widowhood,  or  until  marriage,  is  not  considered  as  in  restraint 
of  marriage,  and  the  latter  is  therefore  valid  even  as  to  those 
who  have  never  been  married.  2  Min.  Ins.  285.  And  as  such  was 
also  the  rule  of  the  civil  law,  the  doctrine  of  in  terrorem  has  no 
place,  and  the  estate  ends  on  marriage  whether  there  is  a  limita- 
tion over  or  not.  See  cases  cited  in  §  254,  supra,  and  also  Hotz's 
Estate,  38  Pa.  St.  422  (80  Am.  Dec.  490,  and  note);  Arthur  v. 
Cole,  56  Md.  100  (40  Am.  Rep.  409);  Collins  v.  Burge  (Ky.)  47  S. 
W.  444;  Vaughan  v.  Vaughan,  97  Va.  322. 

The  reason  a  limitation  of  property  to  a  person  during  widow- 
hood or  until  marriage  is  always  valid  is,  as  we  have  seen,  because 
at  marriage,  the  whole  estate  given  has  been  enjoyed,  and  there 
is  no  question  of  forfeiture;  whereas,  when  the  restraint  is  by 
way  of  condition  subsequent,  a  larger  estate  limited  is,  at  mar- 
riage, cut  short  and  defeated. 

In  construing  wills,  however,  courts,  while  recognizing  this  dis- 
tinction, refuse  sometimes  to  give  effect  to  technical  words  of 
condition,  especially  when  there  is  a  limitation  over;  and  declar- 
ing that  the  general  intent  of  the  will  is  not  to  restrain  the  mar- 
riage of  the  first  taker,  but  to  make  proper  provision  for  others 
in  that  event,  sustain  the  substituted  gift  as  if  following  a  limita- 
tion. See  Selden  v.  Keen,  27  Gratt.  576;  Mann  v.  Jackson,  84  Me. 
400  (30  Am.  St.  Rep.  358)  ;  Jones  v.  Jones,  1  Q.  B.  D.,  279;  note  to 
Chapin  v.  Cooke  (Conn.)  84  Am.  St.  Rep.  149. 

On  the  other  hand,  though  the  words  used  are  strict  words  of 
limitation,  it  is  argued  by  Professor  Bigelow  (2  Jarman  Wills 
(886),  note)  that  the  court  should  not  be  bound  by  the  form  of 
words,  but  that  on  intention  to  discourage  marriage  should  be 
defeated  in  whatever  guise  it  may  appear.  "The  real  question," 
says  Bigelow,  "supposing,  with  the  authorities,  that  an  attempt 
to  impose  a  general  restraint  of  marriage  is  void,  should  be 
whether  a  purpose  to  impose  such  a  restraint  is  apparent  from 
the  will.  If  that  purpose  is  apparent,  then  on  principle  it  should 
be  immaterial  in  what  form,  whether  by  a  simple  condition  or 


§§269,270]  ESTATES    ON    CONDITION.  365 

being  considered  in  terror  em  merely,  and  though  broken,  the 
grift  is  not  divested.  But  this  doctrine  of  in  terror  em  has  no 
application  to  gifts  of  real  estate,  nor  to  conditions  precedent 
as  to  personalty,  nor  to  conditions  subsequent  as  to  personalty 
unless  in  partial  and  reasonable  restraint. 

jST.  B. — By  way  of  exception  to  the  general  rule,  a  condi- 
tion subsequent  in  a  gift  of  property  to  a  widow  or  widower 
totally  restraining  a  second  marriage  is  good. 

§  270.  Conditions  in  Restraint  of  Alienation — Forfeiture 
by  Cesser  or  by  Limitation  Over. — The  following  summary  is 
taken,  by  permission,  from  Gray's  Restraints  on  Alienation 
(2nd  ed.),  §  279.  It  will  be  observed  that  "condition"  refers 
to  a  case  where  on  breach  of  the  restraint  the  land  is  for- 
feited to  the  grantor  or  his  heirs  on  entry,  while  "conditional 
limitation"  refers  to  a  case  where  on  breach  of  the  restraint 
the  land  is  to  pass  from  the  first  grantee  over  to  a  second. 
And  both  of  these  cases  of  forfeiture  for  alienation  (by  way 
of  cesser  or  limitation  over)  are  to  be  distinguished  from  a 
mere  restraint  on  alienation  (as  to  which  see  §  271,  infra), 
where  the  intent  of  the  grantor  is,  not  that  the  grantee  should 
lose  the  land  on  alienation,  but  that  it  should  remain  the 
grantee's    (any   alienation,   voluntary   or   involuntary,   being 

by  a  limitation,  the  purpose  is  expressed."  And  the  same  view 
is  taken  in  2  Pom.  Eq.  §  933,  note.  The  authorities,  however,  are 
contra. 

In  Jones  v.  Jones,  supra,  the  court  goes  so  far  as  to  deny  that 
the  distinction  between  limitation  and  condition  extends  to  de- 
vises of  land,  though  admitting  its  application  to  personalty.  It 
is  believed,  however,  that  the  American  decisions  recognize  the 
distinction  as  applicable  to  both  realty  and  personalty,  though 
they  are  disposed,  as  has  been  stated,  to  construe  words  of  con- 
dition as  meaning  limitation  in  order  to  effectuate  the  general 
intent.  Thus  in  Mann  v.  Jackson,  supra,  it  is  said:  "And  if  it  is 
here  necessary  and  proper  to  recognize  and  maintain  the  distinc- 
tion between  a  limitation  and  condition  subsequent,  the  lan- 
guage of  this  will  should  be  held  to  constitute  a  valid  limitation, 
and  not  an  illegal  condition." 


366  REAL    PROPERTY.  [Chap.  13 

merely  nugatory),  in  spite  of  his  own  wishes  or  the  claims 
of  his  creditors. 

The  cases  decided  since  the  publication  of  the  second  edition 
(1895)  of  Professor  Gray's  valuable  treatise  will  be  found 
in  the  notes  appended  to  this  section. 

Forfeiture  for  Alienation  (Gray's  Restraints  on 
Alienation,  §  279). 

A.  Fee-simple. — An  unqualified  [i.  e.,  as  to  time,  persons, 
&c]  condition  or  conditional  limitation  on  alienation,  either 
in  general  or  in  any  particular  mode  [i.  e.,  by  deed  only  or 
will  only],  cannot  be  joined  to  a  fee-simple  [in  land]  or  to 
an  absolute  interest  in  personalty.     §§  13-30;  55-56  g.1 

1  Condition  in  Unqualified  Restraint  of  Alienation  of  a  Fee- 
simple. — For  discussion  of  the  general  subject  of  conditions  in 
restraint  of  alienation  of  property  see,  in  addition  to  Professor 
Gray's  exhaustive  monograph,  2  Jarman,  Wills  (Bigelow's  ed.) 
855,  et  seq.;  note  to  Jackson  v.  Schutz  (N.  Y.),  9  Am.  Dec.  200; 
note  to  Be  Peyster  v.  Michael  (N.  Y.)  57  Am.  Dec.  488-499;  Man- 
dlebaum  v.  McDonell,  29  Mich.  78  (18  Am.  Rep.  61). 

In  Potter  v.  Couch,  141  U.  S.  296,  315,  it  is  said:  "The  right  of 
alienation  is  an  inherent  and  inseparable  quality  of  an  estate  in 
fee-simple.  In  a  devise  of  land  in  fee-simple,  therefore,  a  condi- 
tion against  all  alienation  is  void,  because  repugnant  to  the  estate 
devised.  For  the  same  reason,  a  limitation  over,  in  case  the  first 
devisee  shall  alien,  is  equally  void,  whether  the  estate-  be  legal 
or  equitable."  For  the  origin  of  the  rule,  see  Gray,  §§  20,  21,  257. 
His  conclusion  is  (§  21):  "In  truth  the  rule  seems  not  to  allow 
nor  call  for  any  reason  except  public  policy." 

An  unqualified  restraint  on  alienation  of  a  fee-simple  cannot  be 
validated  by  giving  to  the  conveyance  the  form  of  limitation  in- 
stead of  condition.  Thus  in  Re  Dugdale,  38  Ch.  D.  176  (quoted  by 
Gray,  §  29  a)  it  is  said:  "A  limitation  to  A  and  his  heirs,  but 
if  he  attempts  to  alien,  to  B  in  fee,  in  an  invalid  gift  over.  So 
also  where  the  limitation  is  to  A  and  his  heirs  until  he  attempts 
to  alien,  and  thereupon  to  B  and  his  heirs."  And  see  Metcalfe  v. 
Metcalfe,  43  Ch.  D.  633;  Stansbury  v.  Hubner,  73  Md.  228  (25  Am. 
St.  Rep.  584).   But  see  2  Min.  Ins.  (4th  ed.)  289. 

For  an  example  of  an  unqualified  restraint  on  the  alienation 
of  the  fee  in  a  particular  mode,  see  Kaufman  v.  Burgert,  195  Pa. 
St.  274   (78  Am.  St.  Rep.  813).    There,  after  the  gift  of  land  in 


§270]  ESTATES    ON    CONDITION.  367 

A  condition  or  conditional  limitation  on  alienation  to  cer- 
tain specified  persons  can  probably  be  attached  to  a  fee-simple 
[in  land]  or  to  an  absolute  interest  in  personalty;  but  how 
far  a  condition  or  a  conditional  limitation  on  alienation 
except  to  certain  specified  persons  can  be  so  attached  is 
doubtful.     §§  31-44.1 

fee-simple,  the  will  declared:  "Nor  shall  my  said  son  [the  dev- 
isee] sell  or  dispose  of  any  part  thereof,  but  the  same  shall  go 
[to]  and  vest  in  his  heirs,  unless  he  shall  devise  the  same  by  his 
last  will  and  testament,  which  he  is  authorized  and  empowered 
hereby  to  do."  The  Court  said:  "It  is  very  clear  that  the  estate 
devised  was  an  estate  in  fee-simple,  with  power  to  dispose  of  the 
same  by  will  but  not  by  deed.  In  other  words,  the  attempt  was 
made  to  confer  a  fee-simple  estate  shorn  of  a  power  to  alienato 
except  by  will.  The  authorities  are  quite  clear  that  in  such  case 
the  estate  in  fee-simple  passes  to  the  devisee,  and  the  condition 
against  alienation  is  void." 

In  this  case,  the  restraint  was  by  way  of  restriction  merely; 
but  the  law  is  the  same  as  to  the  fee-simple  when  it  is  by  way 
of  condition  or  conditional  limitation.  See  Moore  v.  Saunders,  15 
S.  C.  440  (40  Am.  Rep.  703),  quoted  from  in  §  267,  supra. 

In  the  above  case,  the  particular  mode  of  alienation  forbidden 
was  by  deed.  But  the  restraint  may  be  on  alienation  by  will;  and 
this  may  be  imposed  by  a  provision  that  unless  the  owner  in  fee 
disposes  of  the  property  in  his  lifetime,  it  shall  go  over  to  an- 
other, thus,  by  implication,  depriving  him  of  the  power  to  will 
the  property  of  which  he  may  die  seized  or  possessed.  Such  a 
restraint  on  the  power  of  alienation  by  will  is  void.  Gray,  §  56  a; 
Case  v.  Dwire,  60  la.  442  (15  N.  W.  265).  See  Shaw  v.  Ford,  7  Ch. 
D.  669   (23  Moak,  796). 

For  other  examples  of  void  restraints  on  alienation  of  the  fee- 
simple,  see  Murray  v.  Green,  64  Cal.  363;  28  Pac.  118  (condition 
that  the  grantee  shall  not  convey  without  the  consent  of  the 
grantor.  See  also  Winsor  v.  Mills,  157  Mass.  362);  Blair  v.  Muse, 
83  Va.  238  (one  of  four  grantees  in  fee-simple  given,  by  subse- 
quent clause,  power  to  dispose  of  the  whole);  Ernst  v.  Sliinkle, 
95  Ky.  608;  26  S.  W.  813  ("that  it  shall  not  be  lawful  to  sell  any 
of  my  real  estate."  Decided,  however,  under  the  Kentucky 
statute). 

1  Condition  as  to  Alienation  of  the  Fee-simple  Qualified  as 
to  Persons. — As  to  this  qualification,  it  is  said,  after  a  review  of 


368  REAL    PROPERTY.  [Chap.  13 

A  condition  or  conditional  limitation  on  alienation  of  an 
estate  or  interest  while  contingent  is  good;  but   (except  in 

the  cases,  by  Gray  (§  41):  "The  authorities,  it  will  be  seen,  are 
in  hopeless  conflict.  The  rule  which  naturally  suggests  itself  is 
that  a  condition  is  good  if  it  allows  of  alienation  to  all  the  world 
with  the  exception  of  selected  individuals  or  classes,  but  is  bad 
if  it  allows  of  alienation  only  to  selected  individuals  or  classes." 

It  will  be  seen  that  the  above  distinction  turns  on  the  degree 
of  the  restraint  as  to  persons,  assuming  that  some  restraint  is 
admissible.  And  it  is  now  probably  too  late  to  deny  the  validity 
of  all  restraint  as  to  persons,  though  this  was  the  view  of  Chan- 
cellor Kent  (4  Kent's  Com.  131),  and  of  Lord  Romilly,  in  Ludlow 
v.  Bunbury,  35  Beav.  36,  and  though  on  principle  it  would  seem 
to  be  the  true  doctrine  (Gray,  §  44). 

The  source  of  the  diverse  views  as  to  the  extent  of  the  restraint 
seems  to  be  found  in  §  361  of  Littleton,  which  is  as  follows:  "But 
if  the  condition  be  such  that  the  feoffee  shall  not  alien  to  such  a 
one,  naming  his  name,  or  to  any  of  his  heirs,  or  [to  any]  of  the 
issues  of  such  a  one,  &c,  or  the  like,  which  conditions  do  not 
take  away  all  power  of  alienation  from  the  feoffee,  &c,  then  such 
condition  is  good."  On  this  Coke's  comment  is:  "If  a  feoffment 
in  fee  be  made  upon  condition  that  the  feoffee  shall  not  enfeoff 
J.  S.  or  any  of  his  heirs  and  issues,  &c,  this  is  good;  for  it  doth 
not  restrain  the  feoffee  from  all  his  power;  the  reason  here 
yielded  by  the  author  is  worthy  of  observation." 

Here  it  will  be  seen  that  the  reason  which  Littleton  gives,  and 
Coke  repeats  and  emphasizes, — "which  conditions  do  not  take 
away  all  power  of  alienation  from  the  feoffee" — goes  beyond  the 
examples  stated, — "not  to  alien  to  such  a  one,"  &c, — and  em- 
braces conditions  not  to  alien  except  to  such  a  one,  &c;  for  in 
both  cases  it  can  be  said  of  the  condition  that,  in  the  language 
of  Coke,  "it  doth  not  restrain  the  feoffee  from  all  his  power" — 
some  liberty  of  alienation  being  allowed  in  the  latter  case,  though 
to  a  very  limited  extent.  And  according  as  reliance  is  placed 
upon  (1)  Littleton's  examples,  or  (2)  his  reason,  the  test  would 
be  (1)  the  smallness  of  the  restriction,  alienation  being  allowed 
to  almost  all  the  world,  or  (2)  the  fact  that  the  condition  does 
not  take  away  all  power  of  alienation,  though  almost  all  the 
world  are  excluded. 

The  diversity  of  view  is  well  illustrated  by  four  English  cases. 
In  Doe  v.  Pearson,  6  East  173,  Lord  Ellenborough  held  that  a 
condition,  annexed  to  a  devise  to  a  woman  in  fee,  restraining 


§  270]  ESTATES    ON    CONDITION.  369 

the  Province  of  Ontario)  if  a  fee-simple  or  an  absolute  inter- 
est in  personalty  has  vested,  a  condition  or  conditional  limita- 
tion against  alienation  attached  to  it  is  void,  however  limited 
in  time.   §§  45-54.1 

alienation  "except  to  her  sister  or  sisters,  or  their  children," 
was  valid — a  decision  justified  by  Littleton's  reason,  as  was 
pointed  out  by  the  winning  counsel,  though  going  beyond  his  ex- 
ample. But  in  Attwater  v.  Attwater,  18  Beav.  330,  Lord  Romilly 
refused  to  follow  Doe  v.  Pearson,  and  held  invalid,  as  to  land 
devised  in  fee,  a  direction  "never  to  sell  it  out  of  the  family;  but 
if  sold  at  all,  it  must  be  to  one  of  his  [the  devisee's]  brothers 
hereafter  named" — a  decision  justified  by  the  example  put  by  Lit- 
tleton, but  falling  short  of  his  reason.  On  the  other  hand,  in  in 
re  Macleay,  L.  R.,  20  Eq.  186,  Sir  George  Jessel  held,  following 
Doe  v.  Pearson,  that  a  devise  of  land  in  fee  to  the  testator's 
brother  "on  the  condition  that  he  never  sell  it  out  of  the  family" 
was  valid.  But  this  again  is  doubted  by  Pearson,  J.,  in  in  re 
Rosher,  26  Ch.  D.  801. 

In  the  United  States,  there  are  many  dicta  that  a  condition  not 
to  alien  to  specified  persons  is  good.  Camp  v.  Cleary,  76  Va.  140, 
143;  Winsor  v.  Mills,  157  Mass.  362,  364;  Potter  v.  Couch,  141  U. 
S.  296,  315;  Latimer  v.  Waddell,  119  N.  C.  370  (26  S.  E.  122). 
And  see  Brothers  v.  McCurdy,  86  Pa.  St.  407  (78  Am.  Dec.  388). 
On  the  other  hand,  a  condition  not  to  alien  except  to  specified 
persons  has  been  held  invalid.  See  Schermerhorn  v.  Negus,  1 
Denio  (N.  Y.)  448;  Anderson  v.  Gary,  36  Ohio  St.  506  (38  Am. 
Rep.  602);  Gray,  §§  40,  43,  and  cases  cited. 

In  Rice  v.  Hall  (Ky.)  42  S.  W.  99,  it  is  held  that  a  condition 
in  a  deed  of  gift  that  the  grantee  in  fee  shall  sell  the  land  to  a 
certain  person  at  a  certain  price  is  valid.  Of  course  a  trust  of 
this  character  would  be  valid;  but  if  the  grantee  has  once  taken 
beneficially,  it  would  seem  that  such  a  condition  subsequent  is 
void,  not  only  as  confining  alienation  to  a  single  person,  but  also 
as  compelling  the  grantee  to  alienate,  when  he  might  prefer  not 
to  do  so.  But  see  1  Shepp.  Touch.  129  (Preston's  interpolation), 
which,  however,  is  not  sustained  by  Littleton  §  361,  which  is 
cited  as  authority. 

1  Condition  in  Restraint  of  Alienation  of  a  Vested  Fee-simple 
fob  a  Certain  Time. — As  to  a  vested  fee-simple,  the  statement  in 
the  text  is  supported  by  all  the  recent  authorities,  following  the 
leading  case  of  Mandlebaum  v.  McDonell,  29  Mich.  78  (18  Am. 
Rep.  61),  where  it  was  held  that  "there  has  never  been  a  time 

24 


370  REAL    PROPERTY.  [Chap.  13 

A  condition  or  conditional  limitation  attached  to  a  fee- 
simple  [in  land]  or  an  absolute  interest  in  personalty  to  take 

since  the  statute  of  Quia  Emptores  when  a  restriction  in  a  con- 
veyance of  a  vested  estate  in  fee-simple,  in  possession  or  re- 
mainder, against  selling  for  a  particular  period  of  time  was  valid 
by  the  common  law";  and  that  "a  condition  or  restriction  which 
would  suspend  all  power  of  alienation  for  a  single  day  is  incon- 
sistent with  the  estate  granted,  unreasonable,  and  void."  See 
Potter  v.  Couch,  141  U.  S.  296,  315;  Anderson  v.  Gary,  36  Ohio  St. 
506  (38  Am.  Rep.  602);  Murray  v.  Green,  64  Cal.  363  (28  Pac. 
118);  Latimer  v.  Wacldell,  119  N.  C.  370  (26  S.  E.  122);  Zillmer 
v.  Landguth,  94  Wis.  607  (69  N.  W.  568);  Jones  v.  Port  Huron, 
cC-c,  Co.,  171  111.  502  (49  N.  E.  700);  in  re  Rosher,  26  Ch.  D.  801. 

As  to  contingent  fees,  the  leading  decision  sustaining  a  time- 
restraint  on  their  alienation  is  Large' 's  Case,  2  Leon.  82  (3  Id. 
182);  and  this  case  has  sometimes  been  cited  as  if  it  were  au- 
thority for  such  restraint  on  a  vested  fee-simple.  But  that  the 
fee-simple  in  Large's  case  was  contingent  was  demonstrated  by 
Christiancy,  J.,  in  Mandlebaum  v.  McDonell,  supra  (and  see 
Murray  v.  Green,  stipra) ;  and  it  is  conceded  that  the  reasons  of 
policy  which  forbid  a  time-restraint  on  a  vested  fee  do  not  apply 
to  a  fee  while  it  remains  contingent.  See  Gray,  §  46;  Mandlebaum 
v.  McDonell,  supra. 

In  Fowlkes  v.  Wagoner  (Tenn.  Ch.  App),  46  S.  W.  586  (affirmed 
orally  by  the  Supreme  Court),  a  distinction  is  made  between 
time-restraints,  attached  to  a  vested  fee-simple,  according  as  they 
are  imposed  by  way  of  restriction  merely  (as  was  the  case  at 
bar),  or  by  way  of  condition  or  conditional  limitation;  and  while 
deciding  that  such  restriction  ("I  further  direct  that  he  shall  not 
sell  or  dispose  of  said  land  until  after  he  arrives  at  the  age  of 
twenty-five  years")  was  void  because  of  the  absence  of  a  clause 
of  cesser  or  limitation  over,  it  was  declared  that  the  presence  of 
such  clause  would  have  rendered  the  restraint  valid.  And  of 
Large's  Case,  even  though  "misapplied  by  text-writers  and  by 
judges,"  it  was  said,  "The  construction  given  to  it  heretofore  has 
become  a  rule  of  property." 

It  is  believed,  however,  that  the  suggested  distinction  between 
a  mere  restriction  on  the  one  hand  and  a  restraint  involving 
forfeiture  on  the  other  is  unsound;  and  as  to  Large's  Case  its 
supposed  application  to  vested  estates  in  fee-simple  is  now  re- 
pudiated in  England  as  well  as  in  the  United  States.  See  2  Jarm. 
Wills  (Bigelow's  ed.),  860-61;  in  re  Rosher,  supra;  American 
cases  cited,  supra. 


§270]  ESTATES    ON    CONDITION.  371 

effect  if  the  owner  does  not  alienate,  e.  g.,  if  he  dies  intestate 
without  having  disposed  of  the  estate,  is,  though  without  suffi- 
cient reason,  held  void.   §§  57-74  g.1 

1  Conditions  in  Restraint  of  Descent  of  Land  of  Which  the 
Owner  Dies  Intestate. — When  land  is  devised  to  A  in  fee,  with 
full  power  to  dispose  of  it  by  deed  or  by  will,  but  on  condition 
that,  if  undisposed  of,  it  shall  go  over  to  B,  the  condition  is  void. 
Such  a  condition,  however,  cannot  be  said  to  restrain  alienation; 
its  effect,  if  valid,  would  be  to  induce  alienation,  in  order  that 
the  devisee,  or  some  one  claiming  under  him,  may  get  the  benefit 
of  the  property.  The  restraint  is  really  on  the  descent  of  the  land 
to  the  devisee's  heirs;  and  by  it  the  devisee  is  not  permitted  "to 
let  the  law  make  his  will  for  him,"  but  he  must  make  his  own 
will,  or  else  the  property  of  which  he  dies  seised  or  possessed  is 
to  pass  to  the  executory  devisee.  Why,  then,  is  such  a  condition 
void  and  the  gift  over  invalid? 

The  reasons  that  have  been  given  for  this  doctrine  are  (see 
Gray,  §  74  c) :  (1)  that  the  gift  over  is  repugnant;  (2)  that  the 
descent  of  a  fee-simple  to  the  owner's  heirs  on  his  death  intes- 
tate is  a  necessary  incident  of  the  estate;  and  (3)  that  an  execu- 
tory devise  contingent  on  an  event  whose  happening  the  first 
taker  may  prevent  is  void. 

As  to  the  first  reason,  there  is  clearly  no  repugnancy,  though 
as  to  personal  property  the  uncertainty  of  the  gift  over  might 
be  a  ground  for  annulling  it.  (But  see  §  244,  supra,  where  both 
repugnancy  and  uncertainty  are  given  as  the  reasons  for  the 
doctrine  of  May  v.  Joynes,  similar  to  that  now  under  discussion.) 

As  to  the  second  reason,  see  Shaw  v.  Ford,  7  Ch.  D.  669  (23 
Moak  796)  where  it  is  said  by  Fry,  J.:  "Any  executory  devise 
which  is  to  defeat  an  estate,  and  which  is  to  take  effect  on  the 
exercise  of  any  of  the  rights  incident  to  that  estate  is  void. 
A  very  familiar  illustration  is  this,  that  an  executory 
devise  to  take  effect  on  alienation,  or  an  attempt  at  alienation, 
is  void.  .  .  .  Another  illustration  of  the  same  principle  is 
that  which  arises  when  the  executory  devise  over  is  made  to  take 
effect  on  not  alienating,  because  the  right  to  enjoy  without  aliena- 
tion is  incident  to  the  estate  given."  But  this  does  not  tell  us 
why  the  right  to  enjoy  [and  transmit  to  heirs]  should  be  so  in- 
cident to  a  fee-simple  as  not  to  come  within  the  maxim  modus 
et  conventio  vincunt  legem.    It  simply  announces  the  fact. 

As  to  the  third  reason — that  a  devise  depending  on  a  contin- 


372  REAL    PROPERTY.  [Chap.  13 

B.  Fee-Tail. — A  condition  or  conditional  limitation  on 
alienation  attached  to  an  estate  in  fee-tail  is  good,  but  is  de- 
stroyed by  barring  the  estate;  and  the  barring  of  an  estate 
tail  cannot  be  restrained  by  any  condition  or  conditional  limi- 
tation.  §§  75-77 

C.  Estate  for  Life. — A  condition  or  conditional  limitation 
on  alienation  is  good  when  attached  to  a  life  estate  or  interest 
in  either  realty  or  personalty.   §§  78-96. * 

gency  within  the  control  of  the  first  devisee  is  void — there  is  no 
such  rule  of  law.    See  Gray,  §  63. 

It  would  seem,  then,  that  the  well-established  doctrine  that  a 
condition  in  restraint  of  the  descent  of  land  of  which  the  owner 
dies  intestate  is  void  must  be  regarded  as  a  rule  based  on  a  sup- 
posed public  policy,  having  regard  to  the  possible  defeat  of  the 
owner's  intention  in  favor  of  his  heirs  by  an  accidental  intestacy, 
or  the  hazard  to  his  creditors.  See  Watkins  v.  Williams,  3  McN. 
&  G.  622;  Gray,  §§  57,  74  g.  And  as  to  personal  property,  there 
is  an  additional  objection  in  the  difficulty  of  identifying  an 
undisposed  of  residue  as  the  subject-matter  of  the  gift,  after  the 
lapse,  perhaps,  of  many  years. 

In  Lockridge  v.  McCommon.  90  Texas  234  (38  S.  W.  33)  it  is 
held  that  a  provision  in  a  deed  conveying  land  in  fee-simple  that, 
in  case  of  the  grantee's  death  without  having  disposed  of  the 
land  by  deed  or  will,  and  without  issue  or  their  descendants  liv- 
ing at  the  time  of  his  death,  the  title  should  pass  to  others,  is 
valid  as  a  conditional  limitation.  The  court  declared  that  the 
condition  "without  having  disposed  of  his  share  or  part  of  said 
land  by  deed  or  by  will"  was  not  repugnant,  but  added:  "If, 
however,  it  be  granted  that  the  former  condition  was  repugnant 
to  the  estate  vested  in  [the  first  devisee],  then  the  repugnant 
condition  would  be  invalid,  and  the  instrument  would  be  con- 
strued as  if  it  had  not  been  inserted.  That  condition  being  elimi- 
nated, the  deed  would  vest  the  title  in  the  [first  devisee],  lim- 
ited upon  the  contingency  of  failure  of  issue  and  their  descend- 
ants [living  at  his  death],  on  the  happening  of  which  the  title 
would  vest  in  the  plaintiff  [the  executory  devisee]."  But  see 
Combs  v.  Combs,  67  Md.  11  (8  Atl.  757). 

1  Conditions  in  Restraint  of  Alienation  of  Life  Estate. — 
"Freedom  of  alienation  is  not  one  of  the  incidents  of  an  estate 
for  life  or  for  years,  nor  could  it  be  without  sometimes  endanger- 
ing the  interest  of  him  in  reversion  or  remainder."    2  Min.  Ins. 


§270]  ESTATES    ON    CONDITION.  373 

Exception. — If  the  life-tenant  is  the  settlor,  a  condition  or 
conditional  limitation  is  bad  on  involuntary  alienation;  how 
far  it  is  good  on  voluntary  alienation  is  doubtful.    §§  90-100. 

D.  Estate  for  Years. — A  condition  or  conditional  limita- 
tion on  alienation  attached  to  an  estate  for  years  is  good. 
§§  101-103. 

(4th  ed.)  290.  See,  in  accord,  Rochford  v.  Hackman,  9  Hare  475; 
Nichols  v.  Eaton,  91  U.  S.  716;  Camp  v.  Cleary,  76  Va.  140;  Bull 
v.  Kentucky,  &c,  Bank,  90  Ky.  452  (14  S.  W.  425);  Jackson  v. 
Harrison,  17  Johns  (N.  Y.)  66.  See  also  Henderson  v.  Harness, 
176  111.  302   (52  N.  E.  68). 

The  rule  is  the  same  whether  the  estate  for  life  is  legal  or 
equitable,  and  whether  the  estate  is  to  cease  on  breach  of  the 
condition  (cesser  and  reversion)  or  go  over  to  a  third  person. 
And  the  life  estate  may  be  made  to  cease  or  go  over  on  either 
voluntary  or  involuntary  alienation.  Rochford  v.  Hackman,  supra; 
Brandon  v.  Robinson,  18  Vesey,  429;  Gray,  §§  79,  80. 

In  Camp  v.  Cleary,  76  Va.  140,  A,  by  the  same  deed,  granted 
three  lots  to  B, — the  first  two  to  B  in  fee-simple,  and  the  third, 
on  which  there  was  a  mausoleum,  to  B  for  life;  on  condition  that 
if  B  should  ever  alienate  or  dispose  of  the  mausoleum  lot  in  any 
way,  the  deed  should  cease  and  be  void  as  to  all  three  lots,  which 
thereupon  should  go  over  to  a  third  person.  It  was  held  that  this 
was  a  valid  condition,  and  that  on  breach  of  it  by  the  sale  of 
part  of  the  mausoleum  lot,  the  conditional  limitation  in  favor 
of  the  third  person  took  effect  as  to  all  three  lots.  The  reasoning 
of  the  court  is  not  clear,  and  is  criticised  by  Professor  Gray  (Re- 
straints on  Alienation,  §§  29  a,  29  b). 

It  would  seem,  however,  that  the  result  reached  in  Camp  v. 
Cleary  is  right  on  the  facts.  The  restraint  on  alienation  was  im- 
posed on  the  mausoleum  lot  only,  and  that  lot  was  conveyed  for 
life,  and  not  in  fee;  and  as  an  unlimited  restraint  on  the  aliena- 
tion of  a  life  estate  is  valid,  no  reason  is  perceived  why,  on  its 
breach,  all  three  lots  should  not  be  forfeited.  No  restraint  is  im- 
posed on  the  alienation  of  the  lots  granted  in  fee.  An  estate  in 
fee-simple  can  be  granted  on  a  condition  subsequent,  whether 
collateral  to  or  connected  with  the  estate  granted;  and  this  con- 
dition, if  valid,  as  it  was  in  Camp  v.  Cleary,  will  on  its  breach 
cause  tbe  fee-simple  to  be  divested,  and  shift  to  an  executory 
grantee. 


374  REAL    PROPERTY.  [Chap.  13 

§  271.  Restraint  on  Alienation  without  Condition  or  Con- 
ditional Limitation. — As  explained  in  §  270,  supra,  the 
grantor  of  land  may  declare  that  it  shall  be  tied  up  in  the 
hands  of  the  grantee,  though  there  is  to  be  no  forfeiture  for 
alienation  either  to  the  grantor  (condition),  or  to  a  third 
person  (conditional  limitation) — the  purpose  being,  as  stated 
by  Gray,  not  to  punish  but  to  prevent  alienation.  The  fol- 
lowing summary  of  the  law  as  to  such  mere  restraint  is  taken, 
by  permission,  from  Gray's  Restraints  on  Alienation  (2nd 
ed.,  1895),  §  279. 

Kestraint  on  Alienation  (Gray,  §  279). 

A.  Fee-simple. — Any  provision  restraining  the  alienation, 
voluntary  or  involuntary,  of  an  estate  in  fee-simple  [in  land] 
or  an  absolute  interest  in  chattels,  real  or  personal,  whether 
legal  or  equitable,  is  void.     §§  105-124.1 

Exception  1.  In  Pennsylvania  the  law  is  doubtful. 
§§  124  a.-124  fc. 

1  Restraint  on  Alienation  of  the  Fee-simple  in  Land. — In  the 
great  case  of  Mandlebaum  v.  McDoncll,  29  Mich.  78  (18  Am.  Rep. 
61),  the  will  provided  that  certain  real  estate  should  remain  un- 
sold until  one  of  the  devisees  should  be  twenty-five  years  of  age; 
or,  in  case  of  his  death,  until  twenty-one  years  from  the  date  of 
the  will.  This  was  construed  to  he  a  mere  restraint  on  aliena- 
tion, the  court  saying:  "Not  even  the  violation  by  them  of  the 
provisions  restricting  their  power  of  sale  was  to  defeat  or  affect 
their  interest,  forfeit  it  to  the  heirs,  or  pass  it  over  to  others;  but 
all  conveyances  of  that  kind,  it  is  declared,  shall  be  void.  .  .  . 
The  devise  is  not  made  upon  the  condition  that  it  shall  be  for- 
feited on  a  sale,  or  an  attempted  sale,  and  that  the  interest  of 
the  devisees  shall  terminate,  or  go  to  the  heirs,  nor  is  it  limited 
over  to  any  other  person  on  the  breach  of  the  restriction  upon 
the  power  of  sale;  but  the  devise  and  the  interest  intended  to 
pass  by  it  were  to  be  absolute  and  unconditional  in  this  respect, 
whether  the  restriction  should  be  observed  or  violated." 

The  restriction  was  held  void,  the  court  declaring,  after  an  ex- 
haustive examination  of  the  authorities:  "We  are  entirely  satis- 
fied that  there  has  never  been  a  time  since  the  statute  Quia 
Emptores  when  a  restriction  in  a  conveyance  of  a  vested  estate 
in  fee-simple,  in  possession  or  remainder,  against  selling  for  a 
particular  period  of  time,  was  valid  by  the  common  law." 


§  271]  ESTATES    ON    CONDITION.  375 

Exception  2.  In  Massachusetts  a  provision  that  the  abso- 
lute present  owner  of  property  shall  not  receive  it  till  reaching 
a  certain  age  is  valid.     §§  124  7.-124  p. 

Exception  3.  Married  women  may  be  restrained  from  the 
voluntary  or  involuntary  alienation  of  their  separate  estates. 
§§  125-131  /,-. 

B.  Fee-tail. — Any  provision  restraining  the  alienation  of 
an  estate  tail  is  destroyed  by  the  barring  of  the  estate.    §  132. 

Exception.  If  an  equitable  fee-tail,  being  the  separate 
estate  of  a  married  woman,  is  subject  to  a  provision  against 
alienation,  the  fee-simple  which  arises  on  barring  the  estate 
tail  is  subject  to  a  like  provision.     §  133. 

C.  Estate  for  Life. — Any  provision  restraining  the  aliena- 
tion, voluntary  or  involuntary,  of  a  life  estate  or  interest,  in 
realty  or  personalty,  whether  legal  or  equitable,  is  void. 
§§  134-213;  268-268  b.1 

1  Spendthrift  Trusts- — Restraint  on  Alienation  of  an  Equi- 
table Life  Estate. — As  stated  by  Professor  Gray,  under  the  Ex- 
ception which  follows,  it  is  now  held  in  a  number  of  the  States 
that  an  equitable  life  interest,  when  the  life  tenant  is  not  the 
settlor,  may  be  subjected  to  a  provision  against  alienation.  Such 
provisions  are  known  as  "spendthrift  trusts,"  which  may  be 
shortly  denned  as  trusts  creating  inalienable  equitable  life  in- 
terests. They  are  denounced  by  Gray,  and  with  good  reason,  as 
contrary  to  public  policy.  As  is  said  in  Tillinghast  v.  Bradford, 
5  R.  I.  205:  "No  man  should  have  an  estate  to  live  on,  but  not 
an  estate  to  pay  his  debts  with.  Certainly  property  available  for 
the  purposes  of  pleasure  or  profit  should  also  be  amenable  to  the 
demands  of  justice." 

It  should  be  borne  in  mind  that  there  is  no  objection  in  law  to 
a  restraint  on  alienation  of  a  mere  life  estate,  whether  legal  or 
equitable,  if  it  be  by  way  of  condition  or  conditional  limitation, 
involving  on  breach  forfeiture,  either  by  cesser  in  favor  of  the 
grantor,  or  by  limitation  over  to  a  third  person.  For  the  effect 
of  forfeiture,  whether  the  one  way  or  the  other,  is  to  deprive  the 
grantee  of  the  life  estate;  and  this  is  an  entirely  different  mat- 
ter from  a  provision,  "that  a  life  tenant  shall  not  alienate  or  an- 
ticipate,— that  is  a  provision,  not  that  he  and  his  assigns  shall  lose 
the  estate  on  alienation,  but  that  he  shall  be  compelled  to  keep  it, 
so  that  neither  his  grantees,  nor  his  creditors,  nor  any  third  per- 


376  REAL    PROPERTY.  [Chap.  13 

Exception  1.  In  Pennsylvania  and  Massachusetts  an  equit- 
able life  interest,  when  the  life  tenant  is  not  the  settlor,  may 
be  subjected  to  a  provision  against  alienation.    §§  214-240  g. 

son,  can  get  hold  of  it  or  enjoy  it."  Gray,  §  134.  It  is  this  latter 
provision  which  some  courts  hold  void  whether  the  estate  for 
life  be  legal  or  equitable,  but  which  others  sustain  when  the  es- 
tate is  equitable,  though  not  when  it  is  legal — thus  recognizing 
the  spendthrift  trust.  Henderson  v.  Harness,  176  111.  302  (52  N. 
E.  68). 

It  will  be  seen,  therefore,  that  the  doctrine  of  spendthrift  trusts 
is  not  needed  to  sustain  a  restraint  on  the  alienation  of  a  life 
estate  when  enforced  by  way  of  forfeiture, — this  all  courts  re- 
gard as  valid;  nor  is  the  doctrine,  when  recognized,  potent  enough 
to  validate  mere  restraints,  without  forfeiture,  on  the  fee-simple, 
legal  or  equitable,  or  on  legal  life  estates  [see,  however,  as  to 
equitable  fees,  end  of  this  note].  The  conflict  of  authority  has 
been  as  to  the  validity  of  a  restraint  on  alienation,  without 
forfeiture  for  its  breach,  of  an  equitable  estate  for  life — the 
true  description,  as  we  have  seen,  of  a  spendthrift  trust. 

The  form  of  such  a  trust  may  be  illustrated  by  two  cases,  one 
the  leading  decision  in  Massachusetts,  and  the  other  a  recent 
case  in  Pennsylvania,  "the  mother  of  spendthrift  trusts." 

In  Broadway  Bank  v.  Adams,  133  Mass.  170,  the  language  of 
the  will  was  as  follows:  "I  give  the  sum  of  $75,000  to  my  said 
executors,  and  the  survivors  or  survivor  of  them,  in  trust  to  invest 
the  same  in  such  manner  as  to  them  may  seem  prudent,  and  to  pay 
the  net  income  thereof,  semi-annually,  to  my  said  brother  Charles 
W.  Adams,  during  his  natural  life,  such  payments  to  be  made  to 
him  personally,  when  convenient,  otherwise  upon  his  order  or 
receipt  in  writing;  in  either  case  free  from  the  interference  or 
control  of  his  creditors,  my  intention  being  that  the  use  of  said 
income  shall  not  be  anticipated  by  assignment." 

Upon  a  bill  in  equity  to  reach  and  apply  the  income  of  this 
trust  fund  to  the  payment  of  a  debt  due  by  the  cestui  que  trust, 
Adams,  to  the  Broadway  Bank,  it  was  held  that  the  trust  was 
valid,  although  there  was  no  provision  for  cesser  or  limitation 
over,  and  that  the  income  could  not  be  subjected  by  creditors  in 
advance  of  its  payment  to  the  beneficiary.  The  court  said:  "The 
rule  of  public  policy  which  subjects  a  debtor's  property  to  the 
payment  of  his  debts  does  not  subject  the  property  of  a  donor 
to  the  debts  of  his  beneficiary,  and  does  not  give  the  creditor  a 
right  to  complain  that  in  the  exercise  of  his  absolute  right  of 


§  271]  ESTATES    ON    CONDITION.  377 

So  now  [2nd  edition]  also  in  Illinois,  Maine,  Maryland, 
Mississippi,  Vermont,  Missouri,  and  Tennessee;  and  prob- 
ably also  in  Delaware,  Indiana,  and  Virginia.  §§  240  7i-249  b. 
In  the  Federal  Courts  the  authorities  are  conflicting. 
§§  250-268  a.1     [But  see  as  to  Virginia,  note  1,  infra.] 

disposition,  the  donor  has  not  seen  fit  to  give  the  property  to  the 
creditor,  but  has  left  it  out  of  his  reach." 

In  Winthrop  Company  v.  Clinton,  196  Pa.  St.  472  (79  Am.  St. 
Rep.  729),  the  will  created  a  trust  in  the  executors,  as  to  the 
residue  of  the  testator's  estate,  to  pay  the  net  income  thereof  to 
his  son,  "for  his  use  and  support  for  and  during  the  term  of  his 
natural  life,  and  not  to  be  liable  to  anticipation,  and  his  receipt 
alone  to  be  the  sole  discharge  to  my  said  trustees." 

On  an  attempt  of  a  creditor  of  the  son  to  attach  the  income  of 
the  fund  in  the  hands  of  the  executors,  it  was  held  that  the  lan- 
guage above  was  sufficient  to  create  a  spendthrift  trust  free  from 
the  claims  of  creditors,  and  that  it  was  not  necessary  that  the  will 
should  declare  specifically  that  the  income  should  not  be  subject 
to  the  debts  or  liabilities  of  the  cestui  que  trust.  The  court  said: 
"It  would  be  utterly  impossible  to  furnish  continuing  support  for 
the  whole  life  of  a  cestui  que  trust  out  of  an  annual  income  fund, 
if  that  fund  is  to  be  held  subject  to  the  claims  of  creditors  who 
may  at  any  time  take  it  from  him  by  means  of  adversary  proceed- 
ings. It  is  therefore  a  necessary  inference  that  the  testator  had 
no  such  intent  in  this  case,  and  hence  it  follows  that  his  purpose 
was  to  establish  a  spendthrift  trust  in  favor  of  his  son." 

In  the  definition  of  a  spendthrift  trust  above,  the  doctrine  was 
confined  to  equitable  life  estates,  and  such  had  been  considered  the 
settled  law  in  the  States  recognizing  spendthrift  trusts,  with  a 
doubt  as  to  the  law  in  Pennsylvania.  See  Gray,  §  124  a,  et  seq. 
But  in  a  valuable  discussion  of  such  trusts  in  54  Central  Law 
Journal,  p.  382,  by  Nathaniel  S.  Brown,  the  writer,  while  favoring 
the  policy  of  spendthrift  trusts  for  life,  regrets  that  some  of  the 
later  decisions  seem  to  have  extended  the  doctrine  of  these  trusts 
to  equitable  fees, — "an  extreme  view,  which  may  become  produc- 
tive of  harm."  He  cites  Claflin  v.  Claflin,  149  Mass.  19;  Barker's 
Estate,  159  Pa.  St.  518;  Goe's  Estate,  146  Pa.  St.  431;  Beck's  Es- 
tate, 133  Pa.  St.  51;  Rhoacls  v.  Rhoads,  43  111.  239;  Weller  v.  Noff- 
singer,  57  Neb.  455  (77  N.  W.  1075).  And  see  Board  of  Charities  v. 
Lockard,  198  Pa.  St.  572  (82  Am.  St.  Rep.  817). 

1  Spendthrift  Trusts  in  the  United  States. — The  above  sum- 
mary by  Professor  Gray  does  not  give  statutory  changes,  and  some 


378  REAL    PROPERTY.  [Chap.  13 

Exception  2.  Married  women  may  be  restrained  from  the 
alienation,  voluntary  or  involuntary  of  their  separate  life 
estates  or  interests;  but  in  Pennsylvania  and  Massachusetts 
women,  married  or  single,  cannot  so  settle  their  own  property 
as  to  preserve  it  from  creditors  during  coverture.  §§  269- 
277  a. 

additional  decisions  have  been  made  since  the  publication  of  his 
second  edition  (in  1895)  of  Restraints  on  Alienation.  As  the  re- 
sult of  these  decisions,  Texas  and  Nebraska  sanction  spendthrift 
trusts,  and  Virginia  repudiates  them.  See  Wood  v.  McClelland 
(Texas),  53  S.  W.  381;  Weller  v.  Noff singer,  57  Neb.  455  (77  N.  W. 
1075);  Hutchinson  v.  Maxwell  (Va.),  40  S.  E.  655  (7  Va.  Law  Reg. 
785). 

Both  the  Texas  and  Nebraska  courts  approve  the  dictum  of  Mr. 
Justice  Miller  in  favor  of  spendthrift  trusts  in  Nichols  v.  Eaton, 
91  U.  S.  716;  and  the  Nebraska  court  quotes  at  length  the  well- 
known  argument  of  that  learned  judge.  This  argument  is  no 
doubt  largely  responsible  for  the  rapid  growth  of  spendthrift 
trusts  in  the  United  States  during  the  last  twenty-five  years,  the 
seed  sown  falling  on  fertile  soil  in  the  social  and  economic  condi- 
tion of  the  country. 

In  Virginia  there  had  been  dicta  in  favor  of  spendthrift  trusts, 
but  in  the  recent  case  of  Hutchinson  v.  Maxwell,  supra,  (decided 
in  1902),  these  dicta  are  repudiated,  and  the  view  of  Professor 
Gray  is  adopted  that  such  trusts  are  void  on  the  ground  of  public 
policy.  In  this  case,  a  wife  made  conveyances  of  property  to  a 
trustee  in  order,  as  was  stated,  to  provide  "an  estate  and  fund  for 
the  maintenance,  support,  and  enjoyment  of  the  said  Clark  Max- 
well, the  husband  of  the  said  party  of  the  first  part,  at  the  same 
time  securing  the  same  against  his  improvidence,  without  being 
alienable  by  him,  or  in  any  wise  subject  to,  or  chargeable  with, 
his  past,  present,  or  future  debts  or  liabilities. 

The  court  held,  as  one  ground  of  decision,  that  such  a  trust  was 
void  as  to  creditors  under  a  Virginia  statute  which  went  into  effect 
January  1,  1787  (now  §  2428  of  the  Code),  declaring  that,  "Estates 
of  every  kind,  holden  or  possessed  in  trust,  shall  be  subject  to  debts 
and  charges  of  the  persons  to  whose  use  or  to  whose  benefit  they 
are  holden  or  possessed,  as  they  would  be  if  those  persons  owned 
the  like  interest  in  the  things  holden  or  possessed  as  in  the  uses 
or  trusts  thereof."  And  see  the  same  construction  given  to  a  sim- 
ilar statute  in  Kentucky,  as  forbidding  spendthrift  trusts,  in  Hay- 
craft  v.  Bland,  90  Ky.  400  (14  S.  W.  423;   9  L.  R.  A.  599),  citing 


§271]  ESTATES    ON    CONDITION.  379 

D.  Estate  for  Years. — Any  provision  restraining  the  alien- 
ation of  an  estate  for  years  is  void,  semble.  §  278. 

earlier  cases,  among  them  Marshall  v.  Rash,  87  Ky.  116  (12  Am.  St. 
Rep.  467).  But  see  contra  as  to  the  effect  of  a  similar  statute, 
Leigh  v.  Harrison,  69  Miss.  923  (18  L.  R.  A.  49). 

But  in  Hutchinson  v.  Maxivell,  the  court  did  not  place  the  deci- 
sion solely  on  the  statute,  but  as  has  been  stated  above,  declared, 
following  the  English  doctrine,  that  spendthrift  trusts  are  void  be- 
cause against  public  policy.   The  court  said,  per  Buchanan,  J.) : 

"The  decisions  of  the  American  courts  on  this  question  are  con- 
flicting, and  the  reasoning  of  the  cases  which  uphold  spendthrift 
trusts  is  unsatisfactory,  and,  as  it  seems  to  us,  at  war  with  well- 
settled  principles  of  law  as  to  the  incidents  of  property;  whilst  the 
English  courts  of  chancery  and  the  American  cases  which  follow 
them  (even  if  our  statute  did  not  make  a  debtor's  equitable  prop- 
erty liable  for  his  debts  to  the  same  extent  as  if  he  were  the  legal 
owner)  seem  to  us  to  be  sustained  by  the  better  reason,  and  in  fur- 
therance of  a  wise  public  policy.  Whatever  rights,  whether  legal 
or  equitable,  a  person  sui  juris  has  in  property,  ought  to  be,  and 
we  think  are.  liable  for  his  debts,  except  so  far  as  exempt  there- 
from by  statute.  Whatever  rights  of  property  the  cestui  que  trust 
can  demand  from  his  trustees,  his  creditors  ought  to  have  the 
right  to  subject  to  the  payment  of  his  debts,  unless  his  rights  are 
so  connected  or  blended  with  the  rights  of  others  that  they  cannot 
be  subjected  without  prejudice  to  the  latter's  rights.  Nickell  v. 
Handly,  10  Gratt.  336,  339.  .  .  .  The  effect  of  upholding  spend- 
thrift trusts  would  be  to  encourage  idleness  and  lessen  enterprise, 
and  to  foster  a  class  who  become  more  and  more  reckless  and  in- 
different to  their  honest  debts  from  a  sense  that  they  are  hedged  in 
by  the  law  beyond  the  reach  of  their  creditors." 

In  the  article  in  the  Central  Law  Journal,  May  16,  1902  (already 
referred  to),  the  American  States  are  thus  classified:  — 

I.  States  adhering  to  the  English  doctrine  (i.  e.,  repudiating 
spendthrift  trusts) :  Rhode  Island,  North  Carolina,  South  Caro- 
lina, Georgia,  Alabama,  and  Ohio.  [To  this  list  Virginia  should 
now  be  added.     See  Hutchinson  v.  Maxivell,  supra.] 

II.  States  where  only  dicta  are  found:  Wisconsin,  Indiana,  Dela- 
ware, and  Connecticut.  [As  to  Wisconsin,  see  In  re  Luscombe's 
Will.  109  Wis.  186  (85  N.  W.  341).] 

III.  States  where  the  question  is  regulated  by  statute:  New 
York,  New  Jersey,  Tennessee,  and  Kentucky.  [In  the  first  three 
States-named,  spendthrift  trusts  are  validated  by  statute.  As  to 
Tennessee,  see  Jourolman  v.  Massengill,  86  Tenn.  81  (5  S.  W.  719) ; 


380  REAL    PROPERTY.  [Chap.  13 

Exception.  Married  women  can  be  restrained  from  the 
alienation,  voluntary  or  involuntary,  of  estates  for  years 
which  are  their  separate  property.     §  278  a. 

§  272.  Condition  Subsequent — How  Created. — A  condition 
subsequent,  in  order  that  its  breach  may  operate  to  defeat 
the  estate  granted,  must  be  expressed  in  the  deed  itself, 
or  arise  by  necessary  implication  from  its  terms.  2  Wash. 
Eeal  Prop.  (4th  ed.),  7;  note  to  Cross  v.  Carson  (Ind.),  44 
Am.  Dec.  744.  Extrinsic  evidence  of  such  a  condition  is 
inadmissible.  Its  reception  would  violate  the  rule  which  for- 
bids parol  contemporaneous  evidence  to  contradict  or  vary  the 
terms  of  a  valid  written  instrument.  Greenl.  on  Evid.  (16th 
ed.),  §  275;  and  §  305  c,  by  Wigmore. 

As  stated  in  2  Devlin  on  Deeds,  (2d  ed.),  §  976:  "In  an 
action  to  recover  property  conveyed  by  a  deed  on  the  ground 

First  Nat.  Bank  v.  Nashville  Trust  Co.,  62  S.  W.  392.  In  Kentucky, 
as  we  have  seen,  and  also  in  Virgina,  they  are  void  by  statute.] 

IV.  States  upholding  spendthrift  trusts:  Pennsylvania,  Massa- 
chusetts, Illinois,  Maine,  Mississippi,  Maryland,  Texas,  Nebraska, 
Vermont,  Virginia  and  Missouri.  [But  as  to  Virginia  see  Huchin- 
son  v.  Maxwell,  supra,  placing  Virginia  under  Classes  (I.)  and 
(III.)  above.] 

As  to  the  law  of  Maryland,  see  the  able  dissenting  opinion  of 
Chief  Justice  Alvey  in  Smith  v.  Towers,  69  Md.  77  (15  Atl.  92;  9 
Am.  St.  Rep.  404).  Of  Smith  v.  Towers,  it  is  said  by  Professor 
Gray  (Restraints  on  Alienation,  2d  ed.,  §  240  I) :  "The  opinion  of 
the  Court,  and  especially  the  dissenting  opinion  of  the  Chief  Jus- 
tice, are  by  far  the  best  discussions  of  the  question  to  be  found  in 
the  recent  cases." 

As  to  spendthrift  trusts  in  West  Virginia,  see  McClure  v.  Cook, 
39  W.  Va.  579  (20  S.  E.  612),  where  it  seems  to  be  assumed,  obiter, 
that  such  a  trust  would  be  unlawful;  but  see  now  Guernsey  v.  La- 
zear,  41  S.  E.  405,  upholding  spendthrift  trusts. 

For  the  distinction  on  the  facts  between  Nichols  v.  Eaton,  supra, 
where  it  was  not  obligatory  on  the  trustee  to  devote  any  part  of 
the  income  to  the  support  of  the  beneficiary,  and  Hutchinson  v. 
Maxwell,  supra,  when  the  trustee's  discretion  was  only  as  to  the 
amount  needed  for  the  beneficiary's  maintenance,  see  7  Va.  Law 
Reg.  798,  note. 


§§  271-273]  ESTATES    ON    CONDITION.  381 

that  a  condition  on  which  it  was  made  has  not  been  performed, 
the  deed  must  speak  for  itself,  and  a  condition  cannot  be 
grafted  upon  a  deed  absolute  in  form  by  parol  evidence.  The 
ingrafting  of  a  contemporaneous  condition  on  a  deed  will,  in 
a  proper  action,  be  allowed  only  on  clear  evidence  of  fraud, 
accident,  or  mistake."  See  Gadberry  v.  Sheppard,  27  Miss. 
203 ;  Rogers  v.  Sebastian,  21  Ark.  440 ;  Thompson  v.  Thomp- 
son, 9  Ind.  323  (68  Am.  Dec.  638)  ;  Long  v.  McConnell,  158 
Pa.  St.  573  (28  Atl.  233). 

As  an  exception  to  the  general  rule  above  stated,  it  is  the 
doctrine  of  equity  that  a  deed  absolute  on  its  face  may  be 
shown  by  extrinsic  evidence  to  be  in  reality  a  mortgage.  3 
Pom.  Eq.  (2d  ed.)  §  1196.  And  though  a  deed  of  convey- 
ance is  silent  as  to  a  condition,  this  may  be  annexed  thereto 
if  contained  in  a  bond  or  other  written  agreement,  executed 
at  the  same  time  as  the  deed,  and  as  a  part  of  the  same  trans- 
action. Richter  v.  Richter,  111  Ind.  456  (12  N.  E.  698)  ; 
Downing  v.  Rademacher,  133  Cal.  220  (85  Am.  St.  Eep. 
160)  ;  Miller  v.  Quid;  158  Mo.  495  (59  S.  W.  955). 

§  273.  Condition  Subsequent — Who  is  Liable  to  Forfeit 
for  its  Breach. — A  condition  subsequent  enters  into  and  quali- 
fies the  estate  granted,  and  renders  it  defeasible  not  only  in 
the  hands  of  the  original  grantee  or  devisee,  but  in  whose- 
soever hands  it  may  come,  by  purchase  or  by  descent.  Hence 
it  is  binding  on  the  heir  or  devisee  of  the  receiver  on  condi- 
tion, and  also  on  his  alienees.  As  is  said  in  Sheppard's 
Touchstone  (120)  :  "And  if  he  that  hath  the  estate  [on  con- 
dition subsequent]  grant  or  charge  it,  it  will  be  subject  to  the 
condition  still ;  for  the  condition  doth  always  attend  and  wait 
upon  the  estate  or  thing  whereunto  it  is  annexed,  so  that 
although  the  same  do  pass  through  the  hands  of  an  hundred 
men,  yet  it  is  subject  to  the  condition  still;  and  although 
some  of  them  be  persons  privileged  in  divers  cases,  as  the 
king,  infants,  and  women  covert,  yet  they  also  are  bound  by 
the  condition."  See  44  Am.  Dec.  745,  note;  Jackson  v. 
Topping,  1  Wend.   (K  Y.),  388   (19  Am.  Dec.  515);  Ver- 


382  REAL    PROPERTY.  [Chap.  13 

planch  v.  Wright,  23  Wend.  506;  Hogeboom  v.  Hall,  24 
Wend.  146;  Taylor  v.  Sutton,  15  Ga.  103  (60  Am.  Dec. 
682) ;  Sioux  City,  &c,  R.  Co.  v.  Singer,  49  Minn.  301  (32 
Am.  St.  Eep.  554) ;  Ruddich  v.  St.  Louis,  &c.  R.  Co.  116  Mo. 
25  (38  Am.  St.  Eep.  570.) 1 

In  2  Devlin  on  Deeds  (2d  ed.),  §  970,  it  is  said:  "To  bind 
the  heirs  or  assigns  to  the  performance  of  a  condition  subse- 
quent, the  condition  must  expressly  mention  them."'  But  it 
is  believed  that  this  is  not  true  as  a  general  proposition,  and 
that  it  is  always  a  question  of  construction  whether  the  con- 
dition was  meant  to  concern  the  grantee  alone,  or  to  affect  the 
estate  in  the  land  itself.  In  the  latter  case,  the  grantee's  heir 
or  assignee  is  bound,  although  not  named  in  the  deed.  In 
the  former,  the  death  of  the  grantee,  or  his  alienation,  dis- 
charges the  condition,  and  the  heir  or  alienee  takes  the  estate 
free  from  condition.  Thus  a  condition  in  a  lease  that  certain 
land  "shall  not  be  cleared,  nor  any  timber  cut  therefrom,"  not 
saying  by  whom,  is  a  condition  attached  to  and  operating 
upon  the  estate,  and  not  merely  personal,  and  passes  with  the 
estate  to  an  assignee,  though  he  be  not  named.     VerplancJc  v. 

1  Who  Liable  to  Forfeit  foe  Breach  of  Condition  Subsequent. 
— In  Tucker's  Commentaries,  Book  2,  p.  (92),  the  law  is  thus  laid 
down:  "The  heir  of  the  feoffee  or  his  assignee  are  equally  bound 
to  perform  the  condition  for  the  preservation  of  the  estate  when  it 
is  of  a  nature  to  be  performed  by  them.  For  as  they  have  received 
the  estate  they  must  ex  necessitate  take  it  subject  to  the  restraints, 
terms,  and  modifications  attached  to  it  by  the  original  grant  or 
contract  of  the  parties.  It  is  upon  a  like  principle  that  even 
femmes  covert  and  infants  are  bound  by  conditions,  though  they 
cannot  make  a  valid  contract;  for  they  are  bound  not  by  virtue  of 
their  agreement,  but  upon  the  obvious  principle  that  if  I  take  un- 
der a  gift  or  contract  I  must  take  according  to  it,  or  not  at  all.  I 
cannot  garble  it,  taking  what  I  like,  and  rejecting  what  does  not 
suit  me.  Thus,  too,  it  is  that  an  assignee  is  bound  by  a  condition 
whether  it  respect  a  thing  which  is  parcel  of  the  demise  or  not. 
"Whereas  a  covenant  which  does  not  affect  a  thing  parcel  of  the 
demise  does  not  bind  the  assignee,  but  is  considered  as  in  gross,  or 
collateral."  See  Hickey  v.  Lake  Shore,  &c,  R.  Co.,  51  Ohio  St.  40 
(46  Am.  St.  Rep.  545). 


§§272,273]  ESTATES    ON    CONDITION.  383 

Wright,  23  Wend.  506.  But  this  condition  in  a  deed,  "if  the 
said  George  Simpson  [the  grantee]  shall  neglect  to  keep  up 
at  his  own  expense,  forever,  a  good  and  lawful  fence,"  etc.,  is 
personal,  and  binds  George  Simpson  alone.  Emerson  v. 
Simpson,  43  K  H.  475  (82  Am.  Dec.  168.)  And  see  44 
Am.  Dec.  745,  note;  2  Washburn,  Eeal  Prop.  (5th  ed.), 
p.  447. 

In  Odessa  Improvement,  &c,  Co.  v.  Dawson,  5  Texas 
Civ.  App.  487  (24  S.  W.  576),  it  was  held  that  a  condition 
in  a  deed  prohibiting  the  use  of  land  for  the  manufacture  or 
sale  of  intoxicating  liquors  is  binding  into  whosesoever  hands 
the  land  may  thereafter  come;  and  that  the  grantor  may 
enforce  a  forfeiture  for  the  reach  of  the  condition  against 
a  purchaser  from  the  grantee,  though  the  condition  did  not 
in  express  terms  purport  to  bind  the  heirs  and  assigns  of  the 
grantee.  The  court  said:  "That  the  law  applies  the  rule  of 
strict  construction  when  forfeiture  is  claimed  for  the  breach 
of  a  condition  subsequent,  there  can  be  no  question.  And 
upon  this  ground  it  has  been  very  generally  laid  down  by  text 
writers  that  'where  a  condition  applies  in  terms  to  the  grantee, 
without  mentioning  assigns,  they  will  not  be  included.'  To 
sustain  this  view,  the  cases  of  Emerson  v.  Simpson,  43  jST.  H. 
475,  and  Page  v.  Palmer,  48  1ST.  H.  385,  are  invariably  cited. 
These  cases  are  no  doubt  authority  for  the  proposition  that 
where  the  deed  in  terms  exacts  the  doing  of  something  by  the 
grantee  by  name,  and  does  not  make  the  same  requirement 
of  his  heirs  or  assigns,  a  forfeiture  will  not  be  decreed  for 
their  failure ;  and  hence  it  will  be  noted  that  the  text  writers 
in  stating  the  principle,  apply  it  to  cases  where  the  'condition 
in  terms  applies  to  the  grantee.'  In  this  case  it  will  be  noted 
that  the  condition  in  the  deed  does  not  in  terms  apply  to  the 
grantee  in  stating  the  prohibition,  but  applies  to  the  lot  itself. 
The  language  is,  'the  property  hereinafter  described  shall  not 
be  used,' "  etc.  And  see  Sioux  City,  &c,  R.  Co.-  v.  Singer. 
49  Minn.  301  (32  Am.  St.  Eep.  554) ;  Upington  v.  Corrigan, 
151  K  Y.  143,  154  (37  L.  K.  A.  794.) 


384  REAL    PROPERTY.  [Chap.  13 

§  274.    Condition  Subsequent — Who  May  Perform. — It  is 

manifest  that  any  one  who  is  liable  to  forfeit  the  land  for 
non-performance  of  a  condition  subsequent  (see  §  273,  ante) 
is  entitled  to  perform  the  condition,  and  thus  avoid  the  for- 
feiture. Hence  any  one  may  perform  the  condition  into 
whose  hands  the  land  has  come  subject  thereto,  whether  he  be 
the  grantee's  heir,  devisee,  or  alienee.  But  this  is  not  all ;  for 
the  rule  is  laid  down  that  every  person  who  has  an  interest 
in  the  condition,  or  in  the  land  to  which  it  relates,  may  per- 
form it.  How  then  can  one  be  interested  in  the  condition 
(and  so  be  entitled  to  perform  it)  though  he  is  not  interested 
in  the  land  to  which  it  relates  ? 

In  2  Tho.  Co.  (44),  the  case  is  put  of  a  conveyance  of  land 
on  condition  subsequent  that  the  feoffee  pay  to  the  feoffor  a 
sum  of  money  by  a  day  named,  but  before  the  day  named  the 
feoffee  sells  the  land  to  another ;  and  it  is  declared  that  either 
the  first  or  the  second  feoffee  may  perform  the  condition  by 
the  payment  of  the  money.  The  reason  for  this  is  thus  stated 
by  Coke :  "Albeit  the  second  feoffee  be  not  named  in  the 
condition,  yet  shall  he  tender  the  sum,  because  he  is  privy 
in  estate,  and  in  judgment  of  law  hath  an  estate  and  interest 
in  the  condition  (as  Littleton  here  saith)  for  the  salvation  of 
his  tenancy.  And  note  that  he  hath  an  interest  in  the  condi- 
tion on  one  side,  or  in  the  land  on  the  other,  may  tender.  .  .  . 
The  first  feoffee  may,  notwithstanding  his  feoffment,  pay  the 
money  to  the  feoffor,  because  he  is  party  and  privy  to  the 
condition,  and  by  his  tender  may  save  the  estate  of  his 
feoffee,  which  in  all  good  dealing  he  ought  to  do."  2  Wash. 
Real  Prop.  (5th  ed.),  450;  2  Min.  Ins.  (4th  ed.),  278;  44 
Am.  Dec.  745,  note;  Marks  v.  Maris,  10  Mod.  419;  Simonds 
v.  Simonds,  3  Mete.  (Mass.),  558;  Wilson  v.  Wilson,  38  Me. 
18  (61  Am.  Dec.  227) ;  Louisville,  &c,  R.  Co.  v.  Covington, 
2  Bush  (Ky.),  526. 

As  to  the  performance  of  a  condition  by  the  heir  of  the 
feoffor,  as  by  payment  of  a  sum  of  money  whereby  to  divest 
the  estate  conveyed  to  the  feoffee  on  condition  of  such  pay- 


§  274]  ESTATES    ON    CONDITION.  385 

nient  by  the  feoffor  (not  naming  his  heir)  there  is  a  diversity 
according  as  the  time  of  payment  is  or  is  not  fixed.  When 
the  time  is  fixed,  the  heir  of  the  feoffor  may  pay  the  money; 
when  no  time  is  fixed,  the  heir  cannot  pay.  See  2  Tho.  Co. 
(45),  where  it  is  said  by  Littleton:  "For  when  the  condition 
is  that  if  the  feoffor  pay  the  money  to  the  feoffee,  etc.,  [no 
time  being  named]  this  is  as  much  as  to  say,  if  the  feoffor 
during  his  life  pay  the  money  to  the  feoffee,  etc.,  and  when 
the  feoffor  dieth,  then  the  time  of  the  tender  is  past.  But 
otherwise  it  is  where  a  day  of  payment  is  limited,  and  the 
feoffor  die  before  the  day,  then  may  the  heir  tender  the  money, 
as  is  aforesaid ;  for  that  the  time  of  the  tender  was  not  past  by 
the  death  of  the  feoffor." 

But  it  is  manifest  that  the  denial  of  right  of  performance 
to  the  feoffor's  heir  when  no  time  of  payment  is  agreed  on  by 
the  parties  is  not  on  account  of  any  exclusion  of  the  heir  as 
such,  but  because  the  law  in  this  case  limits  the  time  of  per- 
formance, viz.,  to  the  life-time  of  the  feoffor.  In  the  words 
of  Judge  Tucker  (2  Comm.  93)  :  "Unless  the  contract  be  in- 
terpreted to  require  payment  during  the  feoffor's  life,  it  would 
be  utterly  indefinite  when  payment  should  be  made,  as  no 
time  is  specified."1 

1  Time  of  Performance  of  Conditions  Subsequent. — He  who  im- 
poses a  condition  has  a  right  to  limit  the  time  within  which  it  may 
be  performed,  and  if  he  does  so,  the  time  specified  must  be  ob- 
served. 2  Min.  Ins.  (293);  Wheeler  v.  Walker,  2  Conn.  196  (7  Am. 
Dec.  264);  Thompson  v.  Lyon,  40  W.  Va.  87  (20  S.  E.  812).  But 
when  no  time  is  specified,  then  the  law  prescribes  a  reasonable 
time  for  performance;  and  what  is  reasonable  depends  on  the  cir- 
cumstances of  each  case. 

Thus  the  time  of  performance  may  endure  for  the  grantor's  life- 
time, as  where  he  has  conveyed  the  land  with  a  right  of  reentry 
on  his  payment  to  the  grantee  of  a  certain  sum  of  money,  no  time 
being  specified;  for  here  in  the  meantime  the  grantee  has  the  en- 
joyment of  the  land,  and  is  not  injured  by  the  delay.  But  if  the 
condition  be  that  the  grantor  shall  re-enter  unless  the  grantee  pay 
the  grantor  a  certain  sum  of  money,  here  the  grantee  must  pay  the 
grantor  in  a  reasonable  time;   for  meanwhile  the  grantee  has  the 

25 


386  REAL    PROPERTY.  [Chap.  13 

§  275.  Breach  of  Condition  Subsequent — Who  May  En- 
force Forfeiture  Therefor. — "It  is  of  the  essence  of  an  estate 
on  condition  that  the  right  to  enter  for  breach  of  the  con- 
dition be  reserved  to  the  grantor  and  his  heirs.  It  cannot  be 
reserved  to  strangers."  Per  Bigelow,  J.,  in  Guild  v.  Rich- 
ards, 16  Gray  (Mass.),  308,  317.  And  further  it  is  the  doc- 
trine of  the  common  law  that  a  forfeiture  for  a  breach  of  the 
condition  can  only  be  enforced  by  the  grantor  or  his  heirs. 
It  cannot  be  enforced  by  the  grantor's  assignee  or  devisee. 
"All  that  remains  in  the  grantor  of  an  estate  [in  fee]  on 
condition  is  a  right  of  entry  for  breach,  which  is  sometimes 
called  a  possibility  of  reverter.  This  right  or  possibility,  al- 
though it  may  be  released  to  the  person  holding  the  condi- 
tional estate,  so  as  to  vest  the  absolute  title  in  him,  cannot  be 
conveyed  to  a  stranger  or  third  person.  A  mere  right  of 
entry  could  not  be  conveyed  at  common  law.  It  would  be 
contrary  to  the  ancient,  well-settled  rule  that  'nothing  in 
action,  entry,  or  re-entry  can  be  granted  over.'  Co.  Litt. 
214  a."  Guild  v.  Richards,  supra,  p.  317.  See  also  §  212, 
supra.1 

enjoyment  of  the   land,   and  the   grantor   has  neither   land   nor 
money.     And  see  Finley  v.  King,  3  Pet.  346,  377. 

For  examples  of  what  is  or  is  not  a  reasonable  time  for  the 
performance  of  a  condition  when  no  time  is  specified,  see  Hamil- 
ton v.  Elliott,  5  S.  &  R.  (Pa.)  375,  383;  Hay  den  v.  Stoughton,  5 
Pick.  (Mass.)  528;  Ross  v.  Tremain,  2  Mete.  (Mass.)  495;  Ellis  v. 
Kyger,  90  Mo.  600  (3  S.  W.  23);  Adams  v.  Ore  Knob  Copper  Co.,  7 
Fed.  634;  Upington  v.  Corrigan,  151  N.  Y.  143,  154  (37  L.  R.  A. 
794);  Bouvier  v.  Baltimore,  &c,  R.  Co.,  65  N.  J.  Law  313  (47  Atl. 
772,  777).  In  this  last  case  many  of  the  older  authorities  are  cited, 
stating  "divers  diversities."  And  see  2  Tuck.  Com.  (96);  2  Wash. 
R.  P.  (5th  ed.)  449;  2  Devlin  on  Deeds,  §  972;  note  to  Cross  v.  Car- 
son, (Ind.)  44  Am.  Dec.  749. 

1  Does  the  Rule  Against  Peepetuitieis  Apply  to  Conditions 
Subsequent. — This  subject  has  already  been  touched  on  in  §  256, 
supra,  where  it  was  seen  that  the  doctrine  in  the  United  States  is 
that  the  Rule  against  Perpetuities  is  not  applicable  to  conditions 
subsequent.   The  contrary,  however,  is  held  in  England.   See  In  re 


§275]  ESTATES    ON    CONDITION.  387 

In  an  oft-quoted  passage  in  Sheppard's  Touchstone  (p. 
149),  the  law  is  thus  laid  down:  "It  is  a  rule  of  the  common 
law  that  none  may  take  advantage  of  a  condition  but  parties 
and  privies  in  right  and  representation,  as  heirs  of  natural 
persons,  executors,  etc.,  and  the  successors  of  politic  persons; 
and  that  neither  privies  nor  assignees  in  law,  as  lords  by 
escheat;  nor  in  deed,  as  grantees  of  reversions;  nor  privies  in 
estate,  as  he  to  whom  a  remainder  is  limited,  shall  take  benefit 
of  entry  or  re-entry  by  force  of  a  condition."  And  in  Ruch 
v.  Rock  Island,  97  U.  S.  693,  696,  it  is  said:  "If  the  condi- 
tions subsequent  were  broken,  that  did  not  ipso  facto  produce 
a  reverter  of  the  title.  The  estate  continued  in  full  force 
until  the  proper  steps  were  taken  to  consummate  the  forfeit- 
ure. This  could  be  done  only  by  the  grantor  in  his  life-time, 
and  after  his  death  by  those  in  privity  of  blood  with  him.   In 

The  Trustees  of  Hollis'  Hospital,  &c,  [1899]  2  Ch.  D.  540,  where  it 
was  decided  that  a  right  of  entry  for  condition  broken  is  within 
the  operation  of  the  rule.  For  discussion  of  this  case,  see  13  Harv. 
L.  R.  407  (re-printed  in  5  Va.  L.  R.  721). 

In  Gray's  Restraints  on  Alienation  (2d  ed.)  §  42,  note,  it  is  said: 
"There  is  no  reason  in  the  history  of  the  law,  or  in  its  principles, 
why  the  Rule  against  Perpetuities  should  not  be  applied  to  condi- 
tions. The  reason  sometimes  given  for  applying  it  to  an  executory 
devise  and  not  to  a  condition,  that  the  former  cannot  be  released 
while  the  latter  can  be,  is  unsound,  ^or  an  executory  devise  to  A 
and  his  heirs  may  always  be  released  by  A,  and  yet  is  unquestion- 
ably within  the  rule.  The  practical  inconvenience  of  not  applying 
the  rule  to  conditions  is  great,  especially  in  America,  where  all  a 
man's  children  are  his  heirs,  and  where,  a  generation  after  his 
death,  his  heirs  may  be  half  a  hundred  or  more  in  number,  and 
scattered  all  over  the  continent." 

But  the  learned  author  adds:  "Notwithstanding  all  this,  there 
have  been  many  cases  in  America  where  conditions  obnoxious  to 
the  Rule  against  Perpetuities  have  been  sustained;  and  although 
they  have  been  upheld  without  apparently  the  objection  of  remote- 
ness occurring  to  either  court  or  counsel,  they  form  a  body  of  prec- 
edents which  it  would  take  some  courage  to  overthrow." 

See  Guild  v.  Richards,  16  Gray  (Mass.)  309;  French  v.  Old  South 
Society,  106  Mass.  479;  First  Universalist  Society  v.  Boland,  155 
Mass.  171;  Cowell  v.  Springs  Co.,  100  U.  S.  55. 


388  REAL    PROPERTY.  [Chap.  13 

the  meantime,  only  a  right  of  action  subsisted,  and  that  could 
not  be  conveyed  so  as  to  vest  the  right  to  sue  in  a  stranger." 
And  see  Schulenberg  v.  Harriman,  21  Wall.  44,  63;  Jackson 
v.  Topping,  1  Wend.  (N\  Y.),  388  (19  Am.  Dec.  515)  ;  Craig 
v.  Wells,  11  N".  Y.  315;  Nicoll  v.  New  York,  &c.,  B.  Co. 
12  K.  Y.  121;  Underhill  v.  Saratoga,  &c,  B.  Co.  20  Barb. 
(N.  Y.)  455;  Guild  v.  Bicliards,  16  Gray  (Mass.)  309;  Ban- 
gor v.  Warren,  34  Me.  324  (56  Am.  Dec.  657) ;  Southard 
v.  Central,  &c,  B.  Co.  26  1ST.  J.  Law,  13;  Bouvier  v.  Balti- 
more, &c,  B.  Co.  (N.  J.)  47  Atl.  772;  Higbee  v.  Bodeman, 
129  Ind.  244  (28  N.  E.  442) ;  Foivllees  v.  Wagoner  (Tenn.), 
46  S.  W.  586,  591;  Kellam  v.  Eellam,  2  Patt.  &  H.  (Va.), 
357;  note  to  Cross  v.  Carson  (Ind.),  44  Am.  Dec.  758. 

It  will  be  seen  by  the  above  extract  from  the  Touchstone 
that  the  doctrine  of  the  common  law,  which  forbade  a  strang- 
er to  meddle  with  conditions,  and  confined  them,  as  to  reser- 
vation and  enforcement,  to  the  grantor  and  his  privies  in 
blood,  was  applied  (1)  to  all  assignments  by  the  grantor,  and 
this  whether  a  reversion  remained  in  him  or  not,  and  (2)  to  a 
limitation  over,  after  the  breach  of  a  condition  subsequent 
by  the  first  taker,  in  favor  of  a  third  person.  As  to  the  limi- 
tion  over,  the  doctrine  of  the  common  law  has  been  stated  in 
§  212,  supra,  where  it  was  seen  that  such  a  limitation  was 
void  at  common  law,  but  is  permitted  in  a  devise,  or  in  a  deed 
by  way  of  use,  under  the  name  of  a  conditional  limitation. 
And  such  a  limitation  is  now  good  in  Virginia  under  the 
statute  of  grants.    See  §  234,  supra. 

As  to  assignments  by  the  grantor,  a  distinction  must  now 
be  made  between  a  grantor  on  a  condition  subsequent  in 
whom  there  remains  a  reversion  after  a  term  of  years  or  an 
estate  for  life,  and  a  grantor  who  has  parted  with  his  entire 
interest,  and  in  whom  there  remains  nothing  but  the  right 
of  entry,  or  of  action,  for  the  breach  of  the  condition.  In  the 
former  case,  by  statute  of  32  Hen.  VIII,  c.  34,  assignees  of 
reversions  expectant  on  particular  estates  "for  term  of  life 
or  lives,  or  for  term  of  years,"  were  allowed  to  take  advan- 


§§275,276]  ESTATES    ON    CONDITION.  389 

tage  of  conditions  broken;  but  in  other  cases,  the  interest  of 
a  grantor  in  fee  on  breach  of  a  condition  subsequent  by  the 
grantee,  which  is  a  mere  possibility  of  reverter,  remained 
non-assignable  as  at  common  law.  For  discussion  of  the 
statute  of  Henry  VIII.,  see  Shepp.  Touch.  150;  Williams, 
Eeal  Prop.  (17th  ed.),  391;  Nicoll  v.  New  York,  &c,  R.  Co. 
12  K  Y.  121,  131;  Van  Rensselaer  v.  Ball  19  N.  Y.  100; 
note  to  Dumpor's  Case,  1  Sm.  L.  C.  (7th  ed.)  110. 

For  the  Virginia  statute  based  on  that  of  32  Henry  VIII., 
see  C.  V.  §  2781.  It  is  as  follows:  "A  grantee  or  assignee 
of  any  land  let  to  lease,  or  of  the  reversion  thereof,  and  his 
personal  representative  or  assigns,  shall  enjoy  against  the 
lessee,  his  heirs,  personal  representative  or  assigns,  the  like 
advantage  by  action  or  entry  for  any  forfeiture  .  .  .  which 
the  grantor,  assignor,  or  lessor,  or  his  heirs  might  have  en- 
joyed." As  to  "conveyances  or  devises  of  rents  in  fee,  with 
powers  of  distress  and  re-entry,"  see  C.  V.  §  2783. 

But  though  the  statute  of  Henry  VIII.  does  not  apply  to 
the  assignment  of  a  bare  right  of  entry  for  breach  of  a  condi- 
tion subsequent,  there  are  more  recent  English  statutes  which 
enable  the  assignee  of  such  right  to  enforce  it,  and  this 
whether  he  claims  under  the  grantor  by  deed  or  by  devise. 
As  to  a  devisee,  the  Wills  Act  of  1  Victoria  (1  Vict.  c.  26, 
§  3)  makes  devisable  "all  rights  of  entry  for  condition  broken, 
and  other  rights  of  entry"  (1  Jarman,  Wills,  Bigelow's  ed., 
p.  75;  2  Id,  App.  B,  p.  798).  As  to  an  assignee,  the  statute 
of  8  and  9  Vict.  c.  106,  §  6  declares  that  "a  right  of  entry, 
whether  immediate  or  future,  and  whether  vested  or  contin- 
gent, may  be  disposed  of  by  deed."  And  there  are  statutes  on 
the  subject  in  several  of  our  States.  See  Southard  v.  Central 
R.  Co.,  26  1ST.  J.  Law,  13;  Cornelius  v.  Ivins,  lb.  376;  Bou- 
vier  v.  Baltimore,  &c,  R.  Co.  (N.  J.)  47  Atl.  772;  Methodist, 
&c.,  Church  v.  Henderson,  40  S.  E.  (N.  C),  691.  For  a  dis- 
cussion of  the  law  of  Virginia,  see  §  276,  infra. 

§  276.  Breach  of  Condition  Subsequent — Is  a  Possibility 
of  Reverter  Alienable  in  Virginia. — This  question  is  ably  and 


390  REAL    PROPERTY.  [Chap.  13 

elaborately  discussed  in  the  briefs  of  counsel  in  King  v.  Nor- 
folk, &c,  R.  Co.  99  Va.  625 ;  but  as  the  restrictive  clauses 
were  held  to  be  covenants  and  not  conditions,  the  court  did 
not  find  it  necessary  to  express  any  opinion  on  the  point.  The 
contention  of  counsel  for  the  railroad,  after  a  review  of  the 
Virginia  statutes,  was  as  follows :  "The  salutary  rule  of  the 
common  law  limits  to  the  grantor  and  his  heirs  the  right 
of  re-entry  upon  forfeiture  for  the  breach  of  a  condition  sub- 
sequent in  a  deed,  and  this  rule  has  not  been  modified  as 
to  a  possibility  of  a  reverter  in  Virginia.  Such  a  right  is 
limited  [i.  e.,  confined]  to  the  grantor  and  his  heirs,  because 
it  is  not  land  nor  an  interest  in  land.  It  is  a  mere  possibility 
of  reverter  for  a  forfeiture,  and  cannot,  therefore,  properly 
be  made  the  subject  of  a  devise  or  conveyance,  or  be  aliened 
in  any  way." 

In  reaching  this  conclusion,  great  reliance  is  placed  on  the 
case  of  Upington  v.  Corrigan,  151  N.  Y.  143  (37  L.  E.  A. 
794),  in  which  it  was  decided  that  under  the  New  York 
statutes  a  right  of  entry  for  condition  broken  by  grantee  in 
fee  simple  is  not  devisable;  and  in  which  the  earlier  cases 
in  that  State  which  had  held  that  such  a  right  is  not  assign- 
able are  approved.  See  Nicoll  v.  New  York,  &c,  R.  Co.,  12 
N.  Y.  121;  Underbill  v.  Saratoga  R.  Co.,  20  Barb.  (N.  Y.) 
455;  Towle  v.  Remsen,  70  N.  Y.  303. 

In  Upington  v.  Corrigan,  supra,  it  was  conceded  by  counsel 
for  the  devisee  that  a  right  of  re-entry  was  not  devisable  at 
common  law ;  and  the  court  held  that  the  common  law  was  not 
changed  by  the  provision  of  the  Revised  Statutes  that  "every 
estate  and  interest  in  real  property  descendible  to  heirs  may 
be  devised."  The  court  said :  "In  this  case,  as  it  is  in  every 
case  of  a  deed  of  the  fee  upon  condition  subsequent,  the 
grantor  parted  with  every  interest  and  estate  in  the  real 
property  conveyed.  .  .  .  That  which  the  grantor  retained 
was  never  regarded  as  an  interest  in  real  property,  or  as  an 
assignable  chose  in  action,  and  cannot  be  deemed  such  through 
anv  construction  of  our  statute."    And  it  was  further  said : 


§  276]  ESTATES    ON    CONDITION.  391 

"We  would  be  without  warrant  in  asserting  the  existence  of 
any  estate  in  Mrs.  Davey  [the  grantor]  in  the  premises 
granted  to  Hughes  [in  fee  on  condition  subsequent],  whether 
at  common  law  or  under  the  Eevised  Statutes.  She  had  an 
election  to  enter  for  condition  subsequent,  and  she  could  re- 
lease her  right  to  do  so.  To  those  rights  her  heirs,  after  her 
decease,  succeeded  by  force  of  representation  and  not  by 
descent.  There  was  no  estate  upon  which  the  Statute  of 
Descents  could  operate ;  but  as  heirs  there  devolved  upon  them 
the  bundle  or  aggregate  of  rights  which  resided  in,  and  sur- 
vived the  death  of,  the  grantor,  their  ancestor.  Her  legal 
personality  was  continued  in  them." 

But  while  this  may  be  the  true  construction  of  the  New 
York  statute  (though  see  Hoyden  v.  Stougliton,  5  Pick. 
(Mass.),  528;  Austin  v.  Cambridgeport,  21  Id.  215;  Clapp 
v.  Wilder,  176  Mass.  332;  Kenner  v.  American  Contract  Co. 
9  Bush  (Ky.  202),  it  is  certain,  as  has  been  shown  in  §  275, 
supra,  that  rights  of  entry  for  condition  broken  have  been 
made  devisable  in  England  by  the  express  language  of  the 
"Wills  Act  of  1  Victoria,  c.  26,  and  assignable  by  the  statute 
of  8  and  9  Vict.  c.  106,  §  6.  Both  of  these  statutes  were  in 
the  hands  of  the  Eevisors  of  the  Virginia  Code  of  1849.  The 
latter  statute  was  reported  by  the  Eevisors  to  the  Legislature 
in  almost  its  very  words,  but  was  extended  by  them  so  as  to 
make  the  interests  therein  embraced  disposable  by  will  as  well 
as  by  deed  (see  Eeport  of  Eevisors,  p.  602,  §  5  and  note). 

But  as  enacted  by  the  Legislature  (Code  of  1849,  Ch.  116, 
§  5;  Code  of  1887,  §  2418)  the  statute  reads:  "Any  interest 
in  or  claim  to  real  estate  may  be  disposed  of  by  deed  or  will." 
As  is  said  by  Moncure,  J.,  in  Carrington  v.  Goddin,  13  Grat. 
587:  "Instead  of  adopting  that  section  [i.  e.,  §  6  of  the 
statute  of  8  and  9  Vict.  c.  106],  which  is  complicated  in  its 
details,  the  legislature  enacted  the  provision  above  quoted. 
Their  object  was  to  use  brief  and  plain  terms,  which  would 
be  at  least  as  extensive  in  their  meaning  as  the  terms  used 
in  the  statute  of  Victoria.     They  could  not  have  used  more 


392  REAL    PROPERTY.  [Chap.  13 

comprehensive  terms  than  they  did."  And  see  Young  v. 
Young,  89  Va.  675,  678;  Nutter  v.  Russell  3  Mete.  (Ky.), 
163.  For  the  full  text  of  the  English  statute,  and  the  statute 
as  proposed  by  the  Eevisors,  see  note  below.1 

1  Alienation  of  Right  of  Entry  for  Breach  of  Condition  Sub- 
sequent.—By  8  &  9  Vict.,  c.  106,  §  6:  "After  the  1st  of  October, 
1845,  a  contingent,  an  executory,  and  a  future  interest,  and  a  pos- 
sibility coupled  with  an  interest,  in  any  tenements  or  heredita- 
ments of  any  tenure,  whether  the  object  of  the  gift  or  limitation  of 
such  interest  or  possibility  be  or  be  not  ascertained,  also  a  right 
of  entry,  whether  immediate  or  future,  and  whether  vested  or  con- 
tingent, into  or  upon  any  tenements  or  hereditaments  in  England, 
of  any  tenure,  may  be  disposed  of  by  deed." 

As  reported  by  the  Revisors  of  1849  (Ch.  116,  §  5,  p.  602  of  the 
Report),  the  section  reads  as  follows:  "A  contingent,  an  execu- 
tory, and  a  future  interest,  and  a  possibility  coupled  with  an  inter- 
est in  any  real  estate,  whether  the  object  of  the  gift  or  limitation 
of  such  interest  or  possibility  be  or  be  not  ascertained,  and  a  right 
of  entry,  whether  immediate  or  future,  and  whether  vested  or  con- 
tingent, into  or  upon  any  real  estate,  may  be  disposed  of  by  deed 
or  will." 

The  language  of  these  enabling  acts  seems  broad  enough  to  cover 
not  only  the  alienation  of  a  right  of  entry  of  an  owner  out  of  pos- 
session of  his  land,  of  which  another  has  adverse  possession  (as 
to  which  see  §  123,  supra),  but  the  alienation  of  a  right  of  entry, 
before  or  after  breach,  by  a  grantor  of  land  on  condition  subse- 
quent. In  the  note  to  the  Report  of  the  Revisors  (p.  602)  atten- 
tion is  called  to  the  change  of  the  law  in  the  first  respect,  viz.,  in 
allowing  the  sale  of  what  were  called  "pretensed  titles,"  but  it  is 
added:  "The  provision  of  the  late  English  statute,  adopted  in  the 
section  to  which  this  note  is  appended,  accomplishes  this  object, 
and  at  the  same  time  changes  some  other  antiquated  rules  which 
created  impediments  in  the  way  of  a  man's  transferring  interests 
of  a  certain  kind  though  they  belong  to  him." 

As  is  stated  in  the  text,  the  form  of  the  statute  as  enacted  by  the 
Virginia  Legislature  is,  "Any  interest  in  or  claim  to  real  estate 
may  be  disposed  of  by  deed  or  will" — a  change,  it  is  believed,  made 
for  the  sake  of  brevity,  and  not  altering  the  effect  of  the  longer 
form  set  out  above.  If  this  be  true,  then,  as  is  contended  in  the 
text,  the  right  of  entry  on  a  grant  of  a  fee-simple  on  condition  sub- 
sequent is  disposable,  before  or  after  breach,  by  deed  or  by  will — a 


§  276]  ESTATES    ON    CONDITION.  393 

As  to  the  Wills  Act  of  1  Victoria,  which,  as  has  been  seen, 
expressly  made  devisable  "rights  of  entry  for  condition 
broken  and  other  rights  of  entry,"  the  Eevisors  of  the  Code 
of  1849  declare  on  p.  623  of  their  report  that  they  "have 
adopted  nearly  the  whole  of  that  statute."  But  §  3,  contain- 
ing the  language  above  quoted,  is  exceedingly  long,  and  was 
reported  by  the  Eevisors  in  a  shortened  form.  As  enacted  by 
the  legislature  (Code  of  1849,  c.  122,  §  1;  Code  of  1887, 
§  2512),  it  reads  as  follows:  "Every  person  not  prohibited 
by  the  following  section  may  by  will  dispose  of  any  estate 
to  which  he  may  be  entitled  at  his  death,  and  which  if  not 
so  disposed  of  would  devolve  upon  his  heirs,  personal  repre- 
sentatives, or  next  of  kin."  But  that  the  word  "estate"  is  not 
here  used  in  any  technical  sense  is  manifest  from  the  next 
sentence  of  the  same  section :  "The  power  hereby  given  shall 
extend  to  any  estate,  rigid  or  interest  [italics  supplied]  to 
which  the  testator  may  be  entitled  at  his  death,"  etc.  And 
see  C.  V.  Ch.  2,  §  5,  cl.  10 :  "The  word  'land'  or  'lands,'  and 
the  words  'real  estate'  shall  be  construed  to  include  lands, 
tenements,  and  hereditaments,  and  all  rights  thereto,  and 
interests  therein,  other  than  a  chattel-interest." 

Under  the  familiar  rule  of  construction,  §  2512  and  §  2418 
are  to  be  construed  together,  and  it  would  seem  that  they 
authorize  the  alienation,  by  deed  or  by  will,  of  rights  of  entry 
for  condition  broken.  It  is  hardly  conceivable  that  the  Ee- 
visors desired  to  restrict  the  scope  of  the  English  statute  in 
conferring  the  power  of  alienation;  and  §  2418  is  broad 
enough  alone  to  render  all  rights  of  entry  alienable  by  deed 
or  devise.  This  being  so,  it  was  unnecessary  to  confer  the 
power  again  in  express  terms  by  the  Wills  Act;  but  it  is  no- 
ticeable that  §  2512,  taking  the  two  sentences  together,  gives 
the  power  to  dispose  by  will  of  any  "right"  to  which  a  testa- 
tor is  entitled  at  his  death,  and  which  if  undisposed  of  would 
"devolve"  upon  his  heirs — thus  conforming  precisely  to  the 

power  of  disposition,  it  is  believed,  demanded  by  a  sound  public 
policy  under  the  improved  conditions  of  modern  civilization. 


394  REAL    PROPERTY.  [Chap.  13 

language  in  which  the  nature  of  a  right  of  entry  is  described 
in  the  extract  from  U ping  ton  v.  Carrington,  p.  374,  supra. 

§  277.  Condition  Subsequent — Mode  of  Enforcement  of 
Forfeiture  for  Breach. — Assuming  that  there  has  been  a 
breach  of  a  valid  condition  subsequent,  the  estate  vested  in 
the  grantee  does  not  cease  in  him,  and  revest  in  the  grantor 
ipso  facto,  but  remains  unimpaired  in  the  grantee  until  entry, 
or  its  equivalent,  by  the  grantor  or  his  heirs.  For  the 
grantor  or  his  heirs  may  waive  the  right  to  enforce  the 
forfeiture;  and  though  there  has  been  no  express  waiver, 
and  the  estate  of  the  grantee  is  still  liable  to  forfeiture,  the 
law,  in  favor  of  the  vested  estate,  will  not  permit  its  destruc- 
tion until  the  right  to  forfeit  has  been  exercised.  See  note  to 
Cross  v.  Carson  (Inch),  44  Am.  Dec.  754;  Challcer  v. 
Chalker,  1  Conn.  79  (6  Am.  Dec.  206)  ;  Spear  v.  Fuller,  8 
K  H.  174  (28  Am.  Dec.  391)  ;  Thompson  v.  Thompson,  9 
Ind.  323  (68  Am.  Dec.  638)  ;  O'Brien  v.  Wagner,  94  Mo.  93 
(4  Am.  St.  Eep.  362) ;  Preston  v.  Bosworth,  153  Ind.  458 
(74  Am.  St.  Eep.  313)  ;  Hubbard  v.  Hubbard,  97  Mass.  188; 
Langley  v.  Chapin,  134  Mass.  82;  Schulenberg  v.  Harriman, 
21  Wall.  44;  Little  Falls,  &c,  Co.  v.  Bclin,  69  Minn.  253  (72 
N.  W.  69);  Bonniwell  v.  Madison,  107  la.  85  (77  N".  W. 
530) ;  Robinson  v.  Ingram  (K  C.)  35  S.  E.  612)  ;  Houston, 
&c,  R.  Co.  v.  Compress  Co.  (Tex.  Civ.  App.)  56  S.  W.  367; 
Lewis  v.  Lewis  (Conn.),  51  Atl.  854. 1 

1  Term  of  Years — Effect  of  Breach  of  Condition  Subsequent 
Annexed  Thereto. — In  Taylor's  Landlord  and  Tenant  (8th  ed.), 
§  492,  it  is  said:  "There  was,  however,  a  distinction  formerly 
drawn  between  leases  [for  years]  that  were  declared  to  be  void 
upon  a  breach  of  condition,  and  such  as  were  voidable  only.  In 
the  case  of  a  lease  for  lives  [i.  e.,  of  freehold],  if  the  lessee  was 
guilty  of  any  breach  of  the  condition  the  lease  was  only  voidable, 
although  by  its  express  terms  it  was  to  become  thereby  void;  and 
the  landlord  might  waive  his  right  to  re-enter  by  the  acceptance  of 
rent,  or  by  some  other  act  which  amounted  to  a  dispensation  of  the 
forfeiture.  But  upon  the  breach  of  such  a  condition  |i.  e-,  to  be 
void]  in  a  lease  for  years,  the  lease  [formerly]  became  ipso  facto 


§§276,277]  ESTATES    ON    CONDITION.  395 

As  to  the  mode  of  exercise  of  the  right  to  enforce  a  forfeit- 
ure, the  common  law  required  in  order  to  divest  an  estate  of 
freehold  (unless  the  grantor  was  already  in  possession  at  the 
time  of  the  breach)  an  entry  on  the  land,  in  order  that  the 
estate,  which  had  vested  by  entry  and  livery  of  seisin,  should 

void,  and  no  subsequent  recognition  could  set  it  up  again.  Yet  if 
the  condition  in  such  a  case  was  merely  that  the  lessor  might  re- 
enter the  lease  was  voidable  only,  and  might  be  affirmed  by  the  ac- 
ceptance of  rent,  if  the  lessor  had  notice  of  the  breach  at  the  time. 
But  the  force  of  this  distinction  [as  to  leases  for  years]  has  been 
almost,  if  not  quite,  abated  by  the  modern  decisions,  which  estab- 
lish that  the  effect  of  a  condition  making  a  lease  [for  years]  void 
upon  a  certain  event,  is  to  make  it  void  at  the  option  of  the  lessor 
only,  in  cases  when  the  condition  is  for  his  benefit,  and  he  actually 
exercises  the  privilege." 

In  Clark  v.  Jones,  1  Denio  (N.  Y.)  516  (43  Am.  Dec.  706),  Bron- 
son,  C.  J.,  says  of  the  modern  doctrine  as  to  leases  for  years  on 
condition  subsequent:  "It  is  a  far-reaching  principle  of  the  com- 
mon law  that  a  party  shall  not  be  allowed  to  take  advantage  of  his 
own  wrong;  and  courts  will  not  so  construe  the  contract  as  to  en- 
able the  lessee  to  put  an  end  to  it,  at  pleasure,  by  his  own  im- 
proper conduct."  See  also  Milton  v.  Kephart,  18  Gratt.,  1,  8;  Bea- 
ton v.  Taylor,  90  Va.  219;  Bowyer  v.  Seymour,  13  W.  Va.  12;  Guffy 
v.  Hukill,  34  W.  Va.  49  (26  Am.  St.  Rep.  901,  and  note);  Peacock, 
dc,  Co.  v.  Brooks  dc,  Co.,  96  Ga.  542  (23  S.  E.  835) ;  Wills  v.  Gas 
Co.,  130  Pa.  St.  222  (18  Atl.  721);  Ray  v.  Western  Gas  Co.,  138  Pa. 
St.  576  (21  Am.  St.  Rep.  922). 

As  to  the  mode  of  enforcement  of  a  forfeiture  of  an  estate  for 
years,  a  distinction  exists  at  common  law  according  as  the  cause 
of  forfeiture  is  the  non-payment  of  rent,  or  the  doing  or  omission 
to  do  some  other  act.  In  the  latter  case,  where  the  default  is  other 
than  the  non-payment  of  rent,  the  option  of  the  lessor  to  make  the 
lease  void,  need  not  be  demonstrated,  by  entry  (unless  it  be  so  stip- 
ulated), "for  a  lease  for  years  may  begin  without  ceremony,  and 
so  may  end  without  ceremony"  (i.  e..  without  formal  entry).  2 
Tho.  Co.  (87);  2  Min.  Ins.  269.  But  while  an  entry  is  not  re- 
quired, doubtless  there  must  be  either  an  entry,  or  an  action  of 
ejectment,  or  otherwise  some  unequivocal  act  to  manifest  the  in- 
tent of  the  lessor  to  treat  the  lease  as  forfeited.  2  Ta'yl.  L.  &  T., 
§  488;  note  to  Guffy  v.  Hukill  ( W.  Va.),  26  Am.  St.  Rep.  912. 

But  when  the  breach  of  the  condition  subsequent  is  the  non-pay- 
ment of  rent,  it  is  held  at  common  law,  and  in  a  number  of  the 


396  REAL    PROPERTY.  [Chap.  13 

be  divested  by  the  equal  notoriety  of  entry  and  the  resumption 
of  that  seisin.  2  Min.  Ins.  (4th  ed.)  267;  note  to  Cross  v. 
Carson  (Ind.),  44  Am.  Dec.  755.  But  in  modern  practice, 
the  forfeiture  is  usually  enforced  by  the  action  of  ejectment; 
and  in  order  to  bring  this  action  no  actual  entry  is  required 
at  common  law,  and  it  is  dispensed  with  by  the  provisions  of 
the  statutory  action.  Ruch  v.  Rock  Island,  97  U.  S.  693; 
Cowell  v.  Springs  Co.  100  IT.  S.  55 ;  Plumb  v.  Tubbs,  41  N. 
Y.  442;  Cornelius  v.  Ivins,  26  N.  J.  Law,  376;  Bouvier  v. 
Baltimore,  &c,  R.  Co.  (N.  J.),  47  Atl.  772;  Ritchie  v.  Kan- 
sas, &c,  R.  Co.  55  Kansas,  36  (39  Pac.  718) ;  Sioux  City, 
&c,  R.  Co.  v.  Singer,  49  Minn.  301  (32  Am.  St.  Eep.  554)  ; 

States,  that  where  the  lease  provides  for  re-entry  on  the  tenant's 
default,  the  landlord,  if  he  desires  to  exercise  this  right,  must 
make  a  previous  demand  for  the  exact  amount  of  the  rent  "on  the 
very  day  the  rent  becomes  due,  at  a  convenient  time  before  sunset, 
at  the  particular  place  at  which  the  rent  is  made  payable  by  the 
terms  of  the  lease,  or  if  there  be  no  place  stipulated  in  the  lease, 
the  demand  must  be  made  at  the  most  notorious  place  on  the  land 
demised,  which,  if  there  be  a  dwelling  house,  is  the  front  door." 
See  §  59,  supra.  Also  2  Lorn.  Dig.  711;  2  Taylor,  L.  &  T.  493;  note 
to  Guffy  v.  Hukill  (W.  Va.),  26  Am.  St.  Rep.  912;  Bowyer  v.  Sey- 
mour, 13  W.  Va.  12;  Johnston  v.  Hargrove,  81  Va.  118;  Henderson 
v.  Caroondale,  &c,  Co.,  140  U.  S.  25. 

The  above  rule  as  to  demand  and  re-entry  in  order  to  enforce 
the  forfeiture  of  a  lease  when  the  default  is  the  non-payment  of 
rent,  does  not  prevail  in  some  of  the  States.  Note  to  Guffy  v. 
Hukill,  34  W.  Va.  49,  in  26  Am.  St.  Rep.  913.  And  in  Guffy  v. 
Hukill,  supra,  it  is  held  that  it  does  not  apply  in  case  of  a  lease  for 
years  which  contains  a  clause  of  forfeiture  for  breach  of  covenant 
to  pay  rent,  but  no  clause  of  re-entry;  and  that  in  such  case  the 
intention  of  the  lessor  to  enforce  the  forfeiture  of  his  lease  of  land 
to  A  could  be  manifested  by  the  execution,  after  A's  breach,  of  a 
lease  of  the  same  land  to  B. 

The  Virginia  statute  (C.  V,  §  2796)  allowing  the  service  of  a 
declaration  in  ejectment  to  take  the  place  of  demand  and  re-entry 
on  a  tenant's  default  in  payment  of  rent  is  set  out  above  in  the 
text.  A  similar  statute  is  in  force  in  West  Virginia.  For  the  Vir- 
ginia and  "West  Virginia  cases  construing  the  statute,  see  §  59, 
supra. 


§277]  ESTATES    ON    CONDITION.  397 

Ruddich  v.  St.  Louis,  &c,  R.  Co.  116  Mo.  25  (38  Am.  St. 
Eep.  570);  Johnston  v.  Hargrove,  80  Va.  118;  Bowyer  v. 
Seymour,  13  W.  Ya.  12;  Martin  v.  Ohio  R.  Co.  37  W.  Va. 
349  (16  S.  E.  589).    See  §  59,  supra.1 

1  FOEFEITUEE  OF  FREEHOLD  ESTATE  WHEN  THE  GRANTOR  IS  IN  POS- 
SESSION.— It  is  well  settled  that  if,  at  the  time  of  the  breach  of  a 
condition  subsequent,  the  grantor  is  in  possession  of  the  land,  a 
forfeiture  may  take  place  without  entry;  for  the  grantor  cannot 
enter  upon  his  own  possession,  and  where  an  entry  cannot  be 
made,  none  can  be  required.  Thompson  v.  Thompson,  9  Ind.  323 
(68  Am.  Dec.  638);  Hubbard  v.  Hubbard,  97  Mass.  188  (93  Am. 
Dec.  75) ;  Hamilton  v.  Elliott,  5  S.  &  R.  (Pa.)  374;  Guffy  v.  Hukill, 
34  W.  Va.  49  (26  Am.  St.  Rep.  901);  note  to  Cross  v.  Carson  (Ind.), 
44  Am.  Dec.  756. 

Of  course,  however,  a  grantor  in  possession  is  not  debarred  from 
waiving  the  forfeiture;  and -the  question  arises,  must  the  grantor, 
though  he  cannot  enter,  manifest  his  intent  to  claim  the  forfeiture 
by  some  act  or  declaration  to  that  effect,  or  does  the  forfeiture  take 
place,  as  of  course,  unless  the  grantee  can  show  what  amounts  to 
a  waiver  by  the  grantor?  The  latter  seems  to  be  the  better  opin- 
ion. 

In  2  Wash.  Real.  Prop.  (5th  ed.)  18,  the  law  is  thus  laid  down: 
"If  the  grantor  is  himself  in  the  possession  of  the  premises  when 
the  breach  happens,  the  estate  revests  in  him  at  once  without  any 
formal  act  on  his  part,  and  he  will  be  presumed  after  breach  to 
hold  for  the  purpose  of  enforcing  a  forfeiture,  unless  he  waive  the 
breach  as  it  is  competent  for  him  to  do,  and  as  he  may  do  by  his 
acts."  See,  in  accord,  O'Brien  v.  Wagner,  94  Mo.  93  (4  Am.  St. 
Rep.  362),  where  it  is  said  (after  quoting  the  language  of  Wash- 
burn, supra) :  "Of  course  this  presumption  [of  intent  to  enforce 
forfeiture]  is  one  of  fact,  and  may  be  overcome  by  evidence,  and 
the  evidence  may  consist  in  the  acts  and  declarations  of  the  party 
in  possession."  And  see  Adams  v.  Ore  Knob  Copper  Co.,  7  Fed. 
Rep.  634,  where  it  is  said  of  a  grantor  in  possession:  "Mere  silent 
acquiescence  in  an  act  which  had  constituted  a  breach  of  an  ex- 
press condition  would  not  amount  to  a  waiver  of  the  right  of  for- 
feiture for  such  breach." 

On  the  other  hand,  in  most  of  the  cases  where  the  grantor  has 
been  in  possession  at  the  time  of  the  breach,  and  a  forfeiture  has 
been  adjudged  to  take  place  without  any  formal  act  of  entry  on 
his  part,  there  were  words  or  acts  of  the  grantor  indicative  of  his 
intent  to  enforce  the  forfeiture;    and  it  has  been  held  that  the 


398  REAL    PROPERTY.  [Chap.  13 

The  language  of  the  Virginia  statute  dispensing  with  entry 
in  order  to  enforce  a  breach  of  a  condition  subsequent,  and 
authorizing  an  action  of  ejectment  in  lieu  thereof,  is  as  fol- 
lows :  "Any  person  who  shall  have  a  right  of  re-entry  into 
lands  by  reason  of  any  rent  issuing  thereout  being  in  arrear, 
or  by  reason  of  the  breach  of  any  covenant  or  condition,  may 
serve  a  declaration  in  ejectment  on  the  tenant  in  possession, 
where  there  shall  be  such  tenant,  or  if  the  possession  be 
vacant,  by  affixing  the  declaration  upon  the  chief  door  of  any 
messuage,  or  at  any  other  notorious  place  on  the  premises, 
which  service  shall  be  in  lieu  of  a  demand  and  re-entry;  and 
upon  proof  to  the  court  by  affidavit  in  case  of  judgment  by 
default,  or  upon  proof  on  the  trial,  that  the  rent  claimed  was 
due,  and  no  sufficient  distress  was  upon  the  premises,  or  that 
the  covenant  or  condition  was  broken  before  the  service  of 
the  declaration,  and  that  the  plaintiff  had  power  thereupon  to 
re-enter,  he  shall  recover  judgment,  and  have  execution  for 
such  lands."  C.  V.  §  2796.    See  2  Tayl.  L.  and  T.  §§  ^-'l.1 

grantor  must,  when  in  possession,  manifest,  by  express  claim  or 
some  unequivocal  act,  an  intent  to  treat  his  possession  after  breach 
as  changed  from  its  former  character,  and  as  now  existing  by  vir- 
tue of  ownership  by  reason  of  the  grantee's  forfeiture.  See  Wil- 
lard  v<  Henry,  2  N.  H.  120;  Frost  v.  Butler,  7  Greenl.  (Me.)  225 
(22  Am.  Dec.  199);  Lincoln,  &c,  Bank  v.  Drummond,  5  Mass.  321; 
Hubbard  v.  Hubbard,  97  Mass.  188  (93  Am.  Dec.  75);  Richter  v. 
RicMer,  111  Ind.  456  (12  N.  E.  698). 

It  is  believed  that  the  case  would  be  rare  where  the  fact  of  the 
grantor's  possession  would  stand  alone;  and  where  there  would 
not  be,  after  the  grantee's  breach,  either  acts  of  ownership  on  the 
part  of  the  grantor,  or  else  acts  of  waiver  by  him,  sufficient  to  de- 
cide the  question  of  his  intent  to  enforce  or  not  to  enforce  the  for- 
feiture incurred  by  the  grantee. 

1  Effect  of  Enforcement  of  Forfeiture  for  Breach  of  Condi- 
tion Subsequent. — In  2  Min.  Ins.  (4th  ed.)  275,  the  law  is  thus 
stated:  "Re-entry,  in  the  case  of  conditions  express,  invests  the 
grantor  or  his  heirs  with  their  original  estate,  and  therefore  de- 
feats all  rights  and  incidents  annexed  to  the  estate  which  is  de- 
termined by  the  re-entry, — such  as  dower  and  curtesy,  and  all 
charges  and  encumbrances  created  by  the  grantee  during  his  pos- 


§§  277, 278]  ESTATES    ON    CONDITION.  399 

§  278.  Condition  Subsequent — No  Damages  at  Law  for 
Breach. — A  bare,  naked  condition,  unaccompanied  by  any 
words  importing  an  undertaking  to  abide  by  or  perform  it, 
cannot  be  enforced  as  a  covenant,  and  damages  recovered 
for  its  breach.  The  only  remedy  at  law  is  to  enforce  a  for- 
feiture. This  is  held  in  the  leading  case  of  Palmer  v.  Plank- 
road  Co.  11  X.  Y.  376,  in  an  able  opinion  by  Selden,  J.,  who, 
after  reviewing  the  authorities,  states  the  reason  of  the  law 
as  follows :  "But  upon  principle,  independent  of  all  authority, 
it  would  seem  impossible  to  come  to  any  other  conclusion.  It 
by  no  means  follows  because  a  grantee  consents  to  take  an 
estate  subject  to  a  certain  condition  that  he  also  consents  to 
obligate  himself  personally  to  the  performance  of  the  condi- 
tion. Many  cases  might  be  imagined  in  which  one  would  be 
willing  to  risk  the  forfeiture  of  the  estate,  while  he  would  be 
altogether  unwilling  to  incur  the  hazard  of  personal  respon- 
sibility in  addition.  The  doctrine  which  the  plaintiffs  in  this 
case  are  driven  to  maintain  is,  that  to  assent  to  the  condition 
is  to  assent  to  the  personal  liability ;  that  the  one  involves  the 
other.  I  can  see  no  sufficient  ground  for  such  an  assumption ; 
the  two  things  are  essentially  distinct,  and  involve  risks  dif- 
ferent in  nature  as  well  as  degree."    See  §  257,  supra. 

The  above  doctrine,  that  no  damages  can  be  recovered  at 
law  for  breach  of  a  mere  condition,  has  received  approval  in 

session.  For  upon  the  re-entry  of  the  grantor  he  becomes  seised 
of  an  estate  paramount  to  that  which  was  liable  to  these  charges. 
2  Tho.  Co.  Lit.  97  (99  n.  W.  2).  But  in  the  case  of  conditions  im- 
plied, as  we  have  seen,  the  grantor  or  his  heirs,  upon  re-entry, 
claim  under,  and  not  paramount  to,  the  grantee,  and  consequently 
none  of  the  latter's  charges  or  encumbrances  are  avoided  by  the 
re-entry,  but  the  grantor  or  his  heirs  take  subject  to  them."  See, 
in  accord,  1  Shep.  Touch.  155.   And  see  §  212,  supra,  on  p.  239. 

In  Bouvier  v.  Baltimore,  &c,  R.  Co.  (N.  J.),  47  Atl.  777,  776,  it  is 
said:  "At  common  law,  upon  an  entry  by  the  grantor  for  breach 
of  condition,  his  entry  defeated  the  livery  made  on  the  creation  of 
the  estate,  and  consequently  all  subsequent  estates  and  remainders 
dependent  thereon  were  extinguished."  And  see  Schlesinger  v. 
Kansas  City,  dc.,  R.  Co.,  152  U.  S.  444. 


400  REAL    PROPERTY.  [Chap.  13 

Jackson  v.  Florence,  16  Johns.  Eep.  47;  Underhill  v.  Sara- 
toga, &c,  R.  Co.  20  Barb.  (N.  Y.)  455;  Bethlehem  v.  Annis, 
40  N.  H.  34  (77  Am.  Dec.  700) ;  Blanchard  v.  Detroit,  &c, 
R.  Co.  31  Mich.  42  (18  Am.  Eep.  142)  ;  Close  v.  Burlington, 
&c,  R.  Co.  64  la.  149  (19  K  W.  886);  Indianapolis,  &c, 
R.  Co.,  v.  Hood,  66  Ind.  580;  Mills  v.  Seattle,  &c,  R.  Co. 
10  Wash.  520  (39  Pac.  246)  ;  Brown  v.  Chicago,  &c,  R.  Co. 
82  1ST.  W.  1003.  And  see  note  to  Ecroyd.  v.  Coggeshall  (R. 
I.),  79  Am.  St.  Rep.  759. 

In  Hale  v.  Finch,  104  U.  S.  261,  269,  it  is  said:  "It  is  the 
case  af  a  bare,  naked  condition,  unaccompanied  by  words 
implying  an  agreement,  engagement,  or  promise  by  the  ven- 
dee that  he  would  personally  perform,  or  become  personally 
responsible  for  its  performance.  The  vendee  took  the  prop- 
erty subject  to  the  right  which  the  law  reserved  to  the  vendor 
of  recovering  it  on  the  breach  of  the  condition  specified.  The 
vendee  was  willing,  as  the  words  in  their  ordinary  and  natural 
sense  indicate,  to  risk  the  loss  of  the  steamboat  when  such 
breach  occurred,  but  not  to  incur  the  personal  liability  which 
would  attach  to  a  covenant  or  agreement  on  his  part.  .  .  . 
If  this  were  not  so,  then  every  condition  in  a  deed  or  other 
instrument,  however  bald  that  instrument  might  be  of  lan- 
guage implying  an  agreement,  could  be  turned  by  mere  con- 
struction, and  against  the  apparent  intention  of  the-  parties, 
into  a  covenant  involving  personal  responsibility."  See  Weir 
v.  Simmons,  55  Wis.  637  (13  N.  W.  873)  ;  Taylor  v.  Sutton, 
15  Ga.  103  (60  Am.  Dec.  682)  ;  Hammond  v.  R.  Co.  15  S.  C. 
10.1 

1  Condition  Pbefeeeed  by  the  Grantee. — In  two  of  the  cases 
cited  on  p.  383,  viz.,  Blanchard  v.  Detroit,  d-c,  R.  Co.,  31  Mich. 
43,  and  Mills  v.  Seattle,  dc.,  R.  Co.,  10  Wash.  520,  the  peculiar 
feature  was  presented  that  (against  the  opposition  of  the  grantor 
who  preferred  covenant),  it  was  the  grantee  who  contended  that 
the  provision  was  a  condition,  and  that  the  grantor's  remedy,  if 
any,  was  to  enforce  a  forfeiture — a  contention  which  was  sus- 
tained by  the  court.  It  is  the  usual  case  that  the  grantor  con- 
tends for  condition,  while  the  grantee  claims  that  the  provision 


§  278]  ESTATES    ON    CONDITION.  401 

In  applying  the  above  doctrine,  it  must  be  remembered  that 
it  is  predicated  of  a  "bare,  naked  condition,"  and  a  prelimi- 
nary question  arises  whether  the  provisions  may  not  be  upon 
its  true  construction  a  covenant,  and  not  a  condition  at  all. 
And,  further,  though  there  be  a  condition,  the  same  provision 
may  also  contain  a  covenant,  and  the  grantor  may  elect  to  pro- 
ceed upon  either.  See  Jackson  v.  Topping,  1  Wend.  (jST.  Y.), 
388  (19  Am.  Dec.  515),  where  a  deed  was  made  by  a  father 
to  his  son  in  consideration  of  a  covenant  on  the  part  of  the 
grantee  to  maintain  the  grantor  and  pay  his  debts,  on  con- 
dition that  if  he  failed  to  do  so,  the  grantor  should  have  right 
of  re-entry,  and  the  court  said:  "Not  satisfied  to  rely  on  a 
covenant  of  the  grantee  to  pay,  he  proceeds  to  convey  the 
estate  on  condition."  And  see  Livingston  v.  Stickles,  8  Paige 
398,  where  it  is  said  (p.  402)  :  "If  it  were  a  mere  condition, 
then  it  is  evident  the  only  remedy  of  the  lessor  would  be  by 
a  proceeding  against  the  purchaser  to  recover  the  premises  for 
breach  of  condition.  But  a  clause  of  this  kind  may  be 
so  framed  as  to  operate  both  as  a  covenant  and  as  a  condition, 
so  as  to  give  the  lessor  an  election  either  to  proceed  by  an 
action  of  covenant  to  recover  damages  for  a  breach  thereof, 
or  by  an  ejectment  to  enforce  the  forfeiture."1 

is  a  covenant  only,  and  seeks  to  escape  forfeiture  (see  King  v. 
Norfolk,  d-c,  R.  Co.,  99  Va.  625);  and  the  rule  of  construction 
which  favors  covenant  rather  than  condition  is  based  on  the  pre- 
sumption— true  in  most  cases — that  a  covenant  is  more  favorable 
to  the  grantee.  See  §  257,  supra.  In  Blanchard  v.  Detroit,  &c, 
R.  Co.,  the  court  said:  "The  position  of  these  parties  confounds 
the  reason  of  this  rule,  and  would  dispense  with  the  rule  itself 
if  the  case  were  a  doubtful  one." 

1  Damages  in  Texas  foe  Breach  of  Condition. — In  Chicago, 
&c,  R.  Co.  v.  Titterington,  84  Texas  218  (31  Am.  St.  Rep.  39),  it 
is  said  in  a  dictum  (the  provisions  of  the  deed  being  held  cov- 
enants only,  and  not  conditions):  "Of  course,  in  the  case  of  a 
condition  subsequent  broken,  the  grantor  has  his  election  to  re- 
enter and  reclaim  the  land,  or  to  sue  for  damages  for  a  breach 
of  the  contract." 

The   only  authority  cited   is  Gulf,  £c,  R.   Co.  v.  Dunman,   74 

26 


402  REAL    PROPERTY.  [Chap.  13 

§  279.  Condition  Subsequent — No  Specific  Performance  in 
Equity. — It  has  been  seen  (§  278,  supra),  that  on  a  "bare, 
naked  condition"  (i.  e.,  a  condition  simpliciter,  unaccom- 
panied by  agreement  or  covenant)  no  action  lies  at  law  to 
recover  damages  for  its  non-performance.  As  the  ground 
of  this  doctrine  is  the  option  of  the  grantee  to  perform 
or  not  perform  the  condition  (subject  to  forfeiture  for  its 
breach),  it  follows,  a  fortiori,  that  specific  performance  can- 
not be  decreed  by  a  court  of  equity,  as  this  would  deprive 
thereby  to  the  hazard  of  forfeiture.  And  the  law  is  so  laid 
down  in  well  considered  cases. 

In  Blanchard  v.  Detroit,  &c,  R.  Co.  31  Mich.  43  (18  Am. 
Eep.  142),  it  is  said  (p.  52)  :  "The  result  upon  the  whole  is 
that  the  provision  relied  on  by  the  complainant  as  a  covenant 
to  be  specifically  enforced  against  the  defendants  must  be  con- 
sidered an  express  condition  subsequent,  and  not  a  covenant, 
and  not  specifically  enforceable  against  the  defendants  as 
one."  And  see,  in  accord,  Close  v.  Burlington,  &c,  R.  Co. 
64  la.  149  (19  N.  W.  886). 

In  Sharon  Iron  Co.  v.  City  of  Erie,  41  Pa.  St.  341,  351, 
the  law  is  thus  stated :   "The  clause  in  the  original  resolution 

Texas  267  (11  S.  W.  1094),  in  which,  however,  it  seems  that  the 
provision  in  the  deed  was  construed  to  be  both  covenant  and  con- 
dition. The  court  said:  "The  defendant  having  agreed  with 
plaintiff  that  it  would,  in  consideration  of  his  conveyance  to  it 
of  the  land  and  privileges  in  controversy,  during  the  time  it 
held  them  fill  his  tank  with  water  every  seven  days,  not  to 
exceed  5,000  gallons,  and  to  surrender  the  land  and  privileges 
when  it  ceased  to  do  so,  must  be  held  liable  in  this  action  for  the 
entire  obligation." 

In  Gulf,  &c,  R.  Co.  v.  Dunman,  supra,  the  plaintiff  recovered, 
in  one  action,  both  the  land  and  damages  for  failure  to  fill  the 
tank  as  agreed.  This  is  contrary  to  the  dictum  in  Chicago,  &c,  R. 
Co.  v.  Titterington,  supra,  where  it  was  said  that  the  grantor  had 
an  election  between  recovery  of  damages  and  the  enforcement  of 
the  forfeiture.  And  see,  as  to  election  when  a  deed  contains 
both  covenant  and  condition,  Stuyvesant  v.  Davis,  9  Paige  427; 
Vnderhill  v.  Saratoga,  dc,  R.  Co.,  20  Barb,  455,  467. 


§279]  ESTATES    ON    CONDITION.  403 

incorporated  into  the  deed  was  a  condition  and  not  a  cove- 
nant, and  where  language  imports  a  condition  merely,  and 
there  are  no  words  importing  an  agreement,  it  cannot  be 
enforced  as  a  covenant,  but  the  only  remedy  is  through  a 
forfeiture  of  the  estate." 

In  Woodruff  v.  Woodruff,  44  N".  J.  Eq.  349  (1  L.  E.  A. 
380)  it  is  said:  "It  is  necessary  to  determine  whether  the  pro- 
vision in  the  deed  in  question  is  a  condition  or  a  covenant.  If 
it  be  a  condition,  specific  performance  of  it  will  not  be  de- 
creed. .  .  .  This  court  can,  in  a  proper  case,  enforce  the 
specific  performance  of  a  covenant;  but  it  cannot  enforce  the 
specific  performance  of  that  in  a  deed  a  non-performance 
of  which  works  a  forfeiture  of  the  estate."  See  §  257, 
supra. 

If  then  there  is  no  specific  performance  of  a  condition 
subsequent  in  equity  (as  the  above  cases  declare),  nor  any 
action  at  law  for  damages  for  its  breach  (as  has  been  seen  in 
§  278,  supra),  it  results  that  such  a  condition  is  not  binding 
on  the  grantee  personally,  and  the  grantor's  remedy  for  its 
breach  is  in  rem  only  i.  e.,  against  the  land,  by  the  enforce- 
ment of  forfeiture. 

But  this  conclusion  is  opposed  to  the  statement  of  the  law 
in  2  Min.  Ins.  (4th  ed.)  277,  where  it  is  said:  "The  person 
who  takes  possession  of  the  land  in  pursuance  of  the  grant, 
is  bound  to  perform  the  conditions,  and  bound  personally, 
although  it  may  be  accompanied  by  ruinous  loss  to  him.  He 
takes  the  estate  cum  onere."  And  in  6  Am.  &  Eng.  Ency. 
Law  (2d  ed.),  505,  it  is  said:  "One  who  accepts  a  conditional 
estate  is  bound  personally  to  the  performance  of  the  condition, 
although  it  may  be  accompanied  by  loss;  he  takes  the  estate 
cum  onere."  And  similar  statements  of  the  law  are  to  be 
found  in  the  text-books,  and  in  some  of  the  cases. 

It  is  believed,  however,  that  the  true  doctrine  is  that  there 
is  no  personal  liability  to  perform  a  condition  subsequent, 
as  such,  and  that  the  cases  apparently  to  the  contrary  are 
explainable  on  the  ground  that  the  provision  enforced  was 


404  REAL    PROPERTY.  [Chap.  13 

not,  on  its  true  construction,  a  condition  at  all,  but  a  covenant 
or  trust;  or  not  a  condition  only,  but  a  covenant  as  well  as  a 
condition.  (See  as  to  this,  §  278,  supra).  And  when  this  is 
the  construction,  that  which  is  binding  is  not  a  condition 
(though  that  may  be  its  form),  but  a  covenant,  which  equity 
may  enforce  specifically  (other  requisites  being  present),  or 
a  trust  reposed  in  the  grantee  or  devisee,  which  equity  will 
not  suffer  him  to  repudiate.1 

1  Condition  not  Personally  Binding  on  the  Grantee. — The 
authorities  cited  by  Professor  Minor  for  the  opposite  doctrine 
(quoted  above  in  the  text)  are  2  Tho.  Co.  Lit.  99,  n.  (W.  2); 
1  Lorn.  Dig.  348;  Vanmeter  v.  Vanmeter,  3  Gratt.  148;  Crawford 
v.  Patterson,  11  Gratt.  364.  In  the  Am.  &  Eng.  Ency.  of  Law, 
where  above  quoted,  the  writer  follows  Prof.  Minor  (whom  he 
cites)  in  the  statement  of  the  law,  and  relies  on  the  Virginia 
cases  cited  by  Prof.  Minor,  but  refers,  in  addition,  to  Rowell  v. 
Jewett,  71  Me.  408;  Att.  Gen.  v.  Andrew,  3  Ves.  Jr.  633;  Hogeooom 
v.  Hogeooom,  24  Wend.  (N.  Y.)  148;  and  Taylor  v.  Sutton,  15  Ga. 
103  (60  Am.  Dec.  682). 

In  2  Tho.  Co.  Lit.  n.  (W.  2),  the  language  is:  "With  regard  to 
conditions  in  general,  it  may  be  further  observed  that  where  an 
estate  is  given  on  condition,  the  taking  possession  of  the  land  to 
which  the  condition  is  annexed  binds  to  the  performance  of  the 
condition,  even  though  such  performance  should  be  attended 
with  loss."  The  cases  cited  are  Att.  Gen.  v.  Christ's  Hospital, 
3  Bro.  C.  C.  165;  Duke  of  Montague  v.  Beaulieu,  3  Bro.  P.  C.  277; 
Att.  Gen.  v.  Andrexo,  3  Ves.  Jr.  633.  In  1  Lorn.  Dig.  348,  cited 
by  Prof.  Minor,  the  language  is  identical  with  that  of  the  note 
to  2  Tho.  Co.  Lit.  above  quoted,  and  the  cases  cited  are  Att.  Gen. 
v.  Christ's  Hospital  and  Att.  Gen.  v.  Andrew,  supra.  It  would 
seem,  then,  that  the  doctrine  has  its  source  in  the  cases  cited  in 
the  note  to  2  Tho.  Co.  Lit.,  and  we  must  consider  whether  they 
sustain  it. 

In  Att.  Gen  v.  Christ's  Hospital,  as  reported  in  3  Bro.  C.  C. 
165,  it  is  said  that  "an  estate  being  devised  to  Christ's  Hospital 
on  condition  of  maintaining  six  children  from  the  parish  of  St. 
Leonard,  Shoreditch,  and  the  hospital  having  taken  possession, 
.  .  .  Lord  Chancellor  [Thurlow]  thought,  whether  the  rents 
were  or  were  not  sufficient  to  maintain  the  number,  the  hospital, 
having  taken  possession  of  the  estate,  was  bound  to  perform 
the  condition,  and  that  they  should  have  considered  of  that  pre- 


§  279]  ESTATES    ON    CONDITION.  405 

In  Bird  v.  Hawkins  (K  J.  Ch.),  42  Atl.  558,  it  is  said: 
"It  is  declared  by  Chief  Baron  Eyre,  in  Blake  v.  Bunbury,  1 
Ves.  Jr.,  523,  to  be  'the  settled  doctrine  of  a  court  of  equity, 

vious  to  taking  possession."  This  is  the  whole  of  the  opinion 
(by  way  of  dictum,  it  seems),  and  in  the  editor's  note  it  is  said 
that  the  report  is  very  incorrect  throughout.  From  this  note  it 
appears  that  the  devise  was  not  "on  condition,"  but  to  the  intent 
that  the  children  should  be  maintained,  and  that  the  Chancellor 
declared  that  "the  defendants,  having  accepted  the  estates  de- 
vised, are  bound  to  observe  the  terms  on  which  they  are  given." 
It  seems  clear  that  the  devise  to  the  Hospital  was  in  trust  and 
not  on  condition,  and  that  the  case  is  not  authority  for  the  doc- 
trine as  to  conditions  for  which  it  has  been  cited. 

The  same  explanation  may  be  made  of  Att.  Gen.  v.  Andrew, 
supra.  The  case  is  plainly  one  of  trust,  and  is  so  treated  through- 
out, both  by  counsel  and  court.  The  question  was  whether  there 
had  been  an  acceptance  of  what  was  conceded  to  be  a  trust,  and 
it  was  held  there  had  not  been,  the  Chancellor  saying:  "I  can- 
not hold  that  they  have  made  an  absolute  definitive  election  to 
accept  this  trust."  As  to  the  third  case,  Duke  of  Montague  v. 
Beaulieu  (re-reported  in  1  English  Reports  1317),  it  was  simply 
a  devise  of  land  for  life  to  the  testator's  son,  on  a  condition  sub- 
sequent to  be  performed  in  a  certain  time,  with  a  limitation 
over  on  the  son's  default;  and  on  the  failure  of  the  son  to  per- 
form, his  estate  ceased,  and  the  land  passed  to  the  executory 
devisee. 

The  two  Virginia  cases  cited  by  Prof.  Minor  are  Vanmeter  v. 
Vanmeter,  3  Gratt.  148,  and  Crawford  v.  Patterson,  11  Gratt.  364. 
In  Vanmeter  v.  Vanmeter,  a  father  executed  a  deed  to  his  two 
sons  conveying  them  certain  lands  in  consideration  of  one  dollar, 
and  "that  they  had  bound  themselves  to  pay  all  debts"  of  the 
father.  The  court  said:  "By  their  acceptance  of  said  deed  and 
enjoyment  of  the  subject  [they]  have  acknowledged  their  per- 
sonal liability  for  the  debts  of  the  grantor  existing  at  the  time 
of  the  execution  of  said  deed,  and  the  creditors  have  a  right  to 
enforce  it.  The  condition  was  one  which  it  was  the  right  and 
duty  of  the  grantor  to  exact  for  the  benefit  of  his  creditors,  and 
is  equivalent  to  a  covenant  on  the  part  of  the  grantees."  Here, 
though  the  court  uses  the  word  "condition"  in  a  general  way,  it 
is  obvious  that  there  was  no  real  condition  at  all,  but  only  a 
covenant. 

In  Crawford  v.  Patterson,  supra,  a  testator  gave  to  his  wife 


406  REAL    PROPERTY.  [Chap.  13 

and  agreed  on  all  sides,  that  no  man  shall  be  allowed  to  dis- 
appoint a  will  under  which  he  takes  a  benefit ;  that  it,  he  may 
not  accept  the  benefits  which  the  will  confers  without  also 

land,  &c,  for  her  life,  and  then  added:  "It  is  understood  that 
my  wife  is  to  keep  my  children  and  raise  them,  and  give  them 
sufficient  schooling."  It  is  clear  that  these  are  not  words  of  con- 
dition, but  at  most  create  a  covenant  or  trust.  The  court  said: 
"The  will  of  Robert  Crawford  imposed  a  charge  on  the  estate 
given  to  his  wife.  .  .  .  The  widow  having  accepted  the  estate, 
took  it  of  course  cum  onere;  and  was  bound  to  keep  and  raise 
the  children  and  give  them  sufficient  schooling." 

It  will  be  seen  that  in  Crawford  v.  Patterson  there  was  no 
question  of  condition  in  the  true  sense,  and  the  same  may  be 
said  of  two  other  Virginia  cases  cited  by  Prof.  Minor  (2  Min. 
Ins.  741)  for  the  doctrine  of  personal  liability,  from  the  accept- 
ance of  the  estate,  to  perform  a  condition  subsequent.  These  are 
Hill  v.  Huston,  15  Gratt.  350,  and  Taliaferro  v.  Bay,  82  Va.  95. 
It  is  true  that  in  both  of  the  cases  personal  liability  is  predi- 
cated of  a  condition;  but  an  examination  of  the  cases,  which 
space  does  not  here  permit,  will  show  that  the  provision  in  each 
was  in  the  nature  of  a  covenant  or  charge,  and  not  a  true  con- 
dition.   See,  too,  Hooson  v.  Whitlow,  80  Va.  784. 

Of  the  cases  cited  in  the  Encyclopedia,  supra,  it  must  suffice  to 
say  that  they  do  not  sustain  the  proposition  that  acceptance  of 
a  deed  on  a  condition  subsequent  imposes  personal  liability  on 
the  grantee. 

In  conclusion  it  may  be  remarked,  that  in  all  the  Virginia 
cases,  the  so-called  condition  was  for  the  benefit  of  a  third  per- 
son, to  whom  a  condition  at  common  law  could  not  be  reserved, 
and  who  could  not  enter  for  its  breach  (§  275,  supra).  Of  such 
cases,  Prof.  Minor  says  (2  Min.  Ins.  274):  "In  equity,  however, 
a  condition  intended  for  the  benefit  of  a  third  person  will  often 
be  regarded  as  a  trust,  and  be  enforced  in  his  favor  as  a  charge 
upon  the  land,  or  upon  the  person  holding  the  land,  to  which  it 
is  attached.  Thus,  a  father  having  conveyed  land  to  his  son, 
on  condition  that  he  should  pay  his  debts,  a  court  of  equity,  at 
the  instance  of  the  creditors,  will  charge  the  debts  as  a  trust 
on  the  lands  in  the  hands  of  the  grantee,  or  of  the  father's  heir, 
if  he  has  entered  for  the  breach."  Citing,  among  other  cases, 
Vanmeter  v.  Vanmeter  and  Crawford  v.  Patterson,  supra.  See, 
in  accord,  Weir  v.  Simmons,  55  Wis.  637  (13  N.  W.  873);  Isner 
v.  Kelley  (W.  Va.),  41  S.  E.  158. 


§  279]  ESTATES    ON    CONDITION.  407 

performing  the  duties  which  it  imposes."  But  the  question 
arises,  what  are  the  duties  which  the  will  imposes?  Until 
these  are  ascertained,  it  cannot  be  known  whether  the  will  is 
disappointed  or  not.  To  fail  to  perform  a  mere  condition 
subsequent  does  not  disappoint  the  will,  for  the  testator  has 
chosen  to  leave  its  performance  to  the  choice  of  the  devisee, 
relying,  in  case  of  non-performance,  on  the  law's  redress  by 
forfeiture,  if  the  heirs  choose  to  enforce  it.  As  to  duties,  the 
devisee  has  no  other  duty  than  to  submit  to  the  forfeiture,  if 
he  elects  to  incur  that  risk.  As  we  have  seen  (§  278)  his 
assent  to  the  condition  is  not  assent  to  personal  liability;  and 
to  an  attempt  to  enforce  such  liability  he  can  truly  say,  "non 
hose  in  foedera  veni." 

But  it  must  be  remembered  that  in  a  will  the  intention  is 
paramount,  and  that  even  the  strongest  words  of  condition 
will  yield  to  the  manifest  intent  of  the  testator  to  exact  obe- 
dience to  his  wishes,  and  not  to  punish  disobedience  by  for- 
feiture. 

The  leading  case  in  England  is  Wright  v.  Wilkin,  2  Best  & 
S.  232  (affirmed  in  Exchequer  Chamber,  lb.  259),  where 
there  was  a  devise  of  land  "upon  this  express  condition,"  viz., 
that  the  devisee  should  pay  certain  legacies;  and  it  was  held, 
by  aid  of  the  context  of  the  will,  that  these  words  did  not 
create  a  condition,  for  the  breach  of  which  the  heir  of  the 
testator  could  enter,  but  a  trust,  which  the  devisee,  taking 
the  legal  estate,  would  in  equity  be  bound  to  perform. 

This  decision,  however,  was  placed  on  the  intention  of  the 
testator,  and  the  court  did  not  accede  to  the  suggestion  that 
"what  used  to  be  construed  a  devise  on  condition  would  now 
be  construed  a  devise  upon  trust"  (as  to  which  see  §  260,  n.  1, 
supra).  On  this  point,  Williams,  J.,  said:  "But  I  do  not 
think  that  all  words  which  formerly  would  have  been  looked 
on  as  creating  conditions  are  now  to  be  treated  as  trusts. 
.  .  .  Looking  at  the  language  of  this  will  altogether,  I 
think  we  are  more  likely  to  effectuate  the  intention  of  the 
testatrix  by  construing  it  as  a  trust  than  as  a  condition." 


408  REAL    PROPERTY.  [Chap.  13 

See  Mills  v.  Davison,  54  N.  J.  Eq.  659,  35  L.  E.  A.  113 

(citing  recent  English  cases) ;  Bird  v.  Haivkins  (1ST.  J.  Eq.), 
42  Atl.  589  (where  numerous  American  decisions  are  re- 
viewed).   And  see  1  Pom.  Eq.  (2d  ed.),  §  460. 

§  280.    Condition  Subsequent — Injunction  in  Equity. — On 

the  principles  laid  down  in  the  two  previous  sections,  it 
would  follow  that  a  court  of  equity  would  decline  to  enjoin 
a  breach  of  a  true  condition  subsequent.  In  one  class  of  cases, 
however,  viz.,  where  there  is  a  negative  condition  restricting 
the  use  of  land  (see  §  262,  supra),  the  distinction  between 
covenant  and  condition  seems  to  be  disregarded — unless,  in- 
deed, such  negative  condition  may  be  regarded  as  in  its  very 
nature  contractual — and  the  jurisdiction  of  equity  is  estab- 
lished to  prevent  a  breach  by  injunction,  instead  of  leaving 
the  grantor  to  punish  it  by  exacting  a  forfeiture. 

In  1  Pom.  Eq.  (2d  ed.),  §  460,  the  doctrine  is  thus  laid 
down :  "A  court  of  equity  may,  by  its  restraining  decree  or 
injunction,  compel  the  observance  of  stipulations  in  the  na- 
ture of  conditions  by  which  some  restraint  is  imposed  upon 
the  use  or  occupation  of  land  conveyed,  such  as  the  provisions 
in  a  deed  by  which  the  grantee  is  forbidden  to  build  in  a 
certain  manner,  or  to  use  the  premises  for  certain  purposes, 
thereby  creating  a  servitude  in  favor  of  adjacent  land  of  the 
grantor.  Compelling  the  performance  of  such  a  stipulation, 
which  perhaps  may  be  in  the  form  of  a  condition,  by  restrain- 
ing its  violation,  is  plainly  not  the  enforcement  of  a  for- 
feiture." And  see  2  Pom.  Eq.  §  689,  note;  3  Id.  §  1295, 
note;  also  §  1342. 

In  the  above  extract,  the  language  "stipulations  in  the 
nature  of  conditions,"  and  "stipulation  which  perhaps  may 
be  in  the  form  of  a  condition,"  might  seem  to  indicate  that 
the  doctrine  is  only  applicable  when  the  construction  of  the 
restraining  provision  converts  it  into  a  covenant,  whose 
breach  would  not  involve  a  forfeiture.  But  this  is  not  the 
meaning  intended,  and  the  cases  show  that  equity  will  restrain 
the  breach  of  a  true  condition,  for  which  the  grantor  could 


§§279,280]  ESTATES    ON    CONDITION.  409 

enter  and  enforce  forfeiture.  This  was  the  character  of  the 
condition  in  the  leading  case  of  Watrous  v.  Allen,  57  Mich. 
362  (58  Am.  Eep.  363),  as  will  be  seen  by  reference  to  §  263, 
supra,  where  it  is  set  out  at  length.  And  see  Cowell  v. 
Springs  Co.  100  U.  S.  55. 

It  seems,  however,  to  be  assumed  in  such  cases  that  the 
negative  condition  amounts  also  to  an  agreement  not  to  do 
what  the  condition  forbids.  Thus  in  Watrous  v.  Allen, 
supra,  it  is  said  by  Cooley,  J. :  "The  complainant  is  not  en- 
titled to  enforce  a  forfeiture  of  the  estate  in  equity,  for  equity 
does  not  aid  in  enforcing  forfeitures.  But  on  the  hearing  in 
this  court,  he  does  not  claim  a  forfeiture,  and  only  asks  the 
enforcment  of  the  condition  as  an  agreement.  This  is  a 
remedy  much  more  favorable  to  the  defendants  that  the 
remedy  at  law,  for  the  equitable  remedy  only  compels  the 
party  to  abide  by  the  agreement,  while  the  remedy  at  law 
takes  from  him  the  property  he  had  paid  for,  and  operates 
as  a  punishment.  Injunction,  then,  to  restrain  a  breach  of 
condition,  if  the  condition  is  legal,  is  perfectly  reasonable." 

To  the  same  effect  is  Clark  v.  Martin,  49  Pa.  St.  289, 
where  the  condition  is  spoken  of  as  if  it  were  also  an  agree- 
ment imposing  a  duty  on  the  grantee.  But  in  this  case  the 
language  of  the  condition  would  seem  to  readily  admit  of  such 
construction.  The  grant  was  "upon  this  express  condition, 
nevertheless,  that  the  said  [grantees]  their  heirs  or  assigns 
shall  not  build  or  erect,  or  suffer  to  be  built  or  erected,  on 
any  part  of  the  hereby  granted  lot  of  ground"  certain  build- 
ings, etc.;  and  such  condition,  that  one  shall  not  do,  would 
seem  equivalent,  ou  acceptance,  to  a  stipulation  not  to  do,  on 
condition  of  forfeiture  for  breach  of  the  agreement.  And  see 
Atlantic  Bock  Co.  v.  Leavitt,  54  N.  Y.  35  (13  Am.  Eep. 
556),  where  the  restriction  is  in  the  form  of  an  express 
covenant,  as  is  true  of  many  other  cases. 

In  the  extract  from  Pomeroy's  Equity  above,  it  will  be  no- 
ticed that  the  building  restriction  is  spoken  of  as  "creating 
a  servitude  in  favor  of  the  adjacent  land  of  the  grantor." 
This  is  the  ordinary  ease,  and  an  injunction  may  then  issue 


410  REAL    PROPERTY.  [Chap.  13 

on  the  theory  of  preventing  an  infringement  of  an  equitable 
easement.  And  in  3  Pom.  Eq.  §  1342,  it  is  said :  '^Restrictive 
covenants  in  deeds,  leases,  and  agreements,  limiting  the  use 
of  land  in  a  specified  manner,  or  prescribing  a  particular  use, 
which  create  equitable  servitudes  on  the  land,  will  be  specifi- 
c-all}^ enforced  in  equity  by  means  of  an  injunction,  not  only 
between  the  immediate  parties,  but  also  against  subsequent 
purchasers  with  notice,  even  when  the  covenants  are  not  of  a 
kind  which  technically  run  with  the  land." 

The  language  above  is  confined  to  "covenants,"  but  that  a 
condition  may  create  an  equitable  servitude,  see  1  Pom.  Eq. 
§  460,  quoted  above;  Whitney  v.  Union  R.  Co.  11  Gray 
(Mass.)  359  (71  Am.  Dec.  715)  ;  Clapp  v.  Wilder,  176  Mass. 
332.  In  Clapp  v.  Wilder,  however,  in  view  of  the  situation 
of  the  grantor  and  the  attendant  circumstances,  the  condition 
was  held  personal  to  the  grantor,  and  not  to  create  a  servi- 
tude in  favor  of  land  retained  by  him.     (See  §  262,  supra.) 

It  is  not  believed,  however,  that  the  equity  to  enjoin  the 
breach  of  a  negative  condition  is  confined  to  cases  in  which 
the  grantor's  deed  containing  the  restriction  on  the  land  con- 
veyed creates  a  servitude,  or  right  in  the  nature  of  an  ease- 
ment, which,  by  implication,  is  made  appurtenant  to  the  land 
which  he  retains.  Though  the  grantor  has  no  other  land, 
the  condition  would  not  on  that  account  be  unlawful,  and 
might  be  enforced  by  forfeiture;  and  if  so,  the  reasoning  of 
Judge  Cooley  in  Watrous  v.  Allen,  supra,  would  suggest  that 
equity  would  grant  the  milder  remedy  by  injunction.  See 
Gray  v.  Blanchard,  8  Pick  (283),  (290) ;  Cowell  v.  Springs 
Co.  100  U.  S.  55;  and  cases  cited  in  note  to  §  266,  supra. 

As  to  the  persons  by  and  against  whom  building  restric- 
tions are  enforceable,  see  §  262,  supra,  note.  As  to  covenants 
running  with  the  land,  see  extended  note  to  Geizler  v.  De 
Graaf  (K  Y.),  82  Am.  St.  Eep.  664-690. 

§  281.  Breach  of  Condition  Subsequent — Equity  Will  Not 
Enforce  Forfeiture. — In  1  Pomeroy's  Equity  (2d  ed.),  §  459, 
the  law  is  thus  laid  down:     "It  is  well  settled  and  familiar 


§§  280, 281]  ESTATES    ON    CONDITION.  411 

doctrine  that  a  court  of  equity  will  not  interfere  on  behalf 
of  the  party  entitled  thereto  and  enforce  a  forfeiture,  but  will 
leave  him  to  his  legal  remedies,  if  any,  even  though  the  case 
might  be  one  in  which  no  equitable  relief  would  be  given  to 
the  defaulting  party  against  the  forfeiture."  And  see,  to  the 
same  effect,  2  Wh.  &  T.  L.  C.  Eq.  (4th  ed.),  2048;  2  Story, 
Eq.  Jur.  §§  1319,  1494;  Story,  Eq.  PL  §§  521,  575.1 

1  Forfeiture  not  Enforced  in  Equity. — The  doctrine  that  equity 
will  not  enforce  a  forfeiture  is  laid  down  above  by  Pomeroy  in 
unqualified  terms;  indeed  he  expressly  declares  (§  460):  "There 
are  no  exceptions  to  this  doctrine;  those  which  appear  to  be  ex- 
ceptions are  not  so  in  reality."  On  the  other  hand  it  has  been 
suggested  that  equity  will  enforce  a  forfeiture  "under  extraordi- 
nary circumstances"  (Livingston  v.  Tompkins,  4  Johns.  Ch.  415)  ; 
"in  extreme  cases"  (Thompson  v.  Thompson,  9  Ind.  323,  68  Am. 
Dec.  638);  "when  exclusively  essential  to  do  justice"  (8  Am. 
&  Eng.  Ency.  Law  (1st  ed.)  446).  In  12  Am.  St.  Rep.  819,  note, 
it  is  said  of  such  conditions:  "They  are  rarely  enforced  in  equity 
so  as  to  divest  an  estate  for  a  breach";  and  in  Bispham's  Equity 
(6th  ed.)  §  181,  it  is  said:  "In  some  cases,  however,  the  enforce- 
ment of  a  forfeiture  may  be  regarded  in  equity  with  favor." 

The  case  relied  on  by  Bispham  and  the  Encyclopedia  (ubi 
supra),  as  authority  for  the  statement  that  equity  may  some- 
times enforce  a  forfeiture,  is  Brown  v.  Vandergrift,  80  Pa.  St. 
142,  where  the  doctrine  is  laid  down  as  follows:  "In  a  case  like 
this  [lease  of  undeveloped  oil  land]  equity  follows  the  law,  and 
will  enforce  the  covenant  of  forfeiture  as  essential  to  justice.  It 
is  true,  as  a  general  statement,  that  equity  abhors  a  forfeiture, 
but  this  is  when  it  works  a  loss  that  is  contrary  to  equity;  not 
when  it  works  equity,  and  protects  the  landowner  against  the 
indifference  and  laches  of  the  lessee,  and  prevents  a  mischief, 
as  in  the  case  of  such  leases."  And  see  Munroe  v.  Armstrong, 
96  Pa.  St.  307,  to  the  same  effect.  For  discussion  of  the  subject, 
see  Bryan,  Law  of  Petroleum  and  Natural  Gas,  §§  171-2. 

The  doctrine  of  Brown  v.  Vandergrift  is  expressly  confined  to 
oil-leases  (so-called)  intended  to  enable  the  lessee  to  search  for 
oil  under  the  lessor's  land,  but  "with  a  clause  of  forfeiture  to 
compel  performance,  and  put  an  end  to  the  lease  in  case  of  in- 
jurious delay  or  want  of  success";  and  the  court  declares  that  it 
does  not  extend  to  leases  "for  the  cultivation  of  the  soil,  or  for 
the  removal  of  fixed  minerals."     Such  minerals  are  distinguished 


412  REAL    PROPERTY.  [Chap,  13 

The  general  doctrine  stated  above  is  firmly  established,  but 

it  will  be  useful  to  give  some  illustrations  of  its  application. 

In  Oil  Creel,  &c,  R.  Co.  v.  Atlantic,  &c,  R.  Co.  57  Pa. 

from  petroleum,  "whose  fugitive  and  wandering  existence  within 
the  limits  of  a  particular  tract  is  uncertain;  and  assumes  cer- 
tainty only  by  actual  development  founded  upon  experiments." 
It  should  be  added  that  in  this  case  the  lessee  was  to  pay  one- 
eighth  of  the  oil  found  as  a  rent  or  royalty.  For  the  importance 
of  a  right  on  the  part  of  the  lessor  to  terminate  such  a  lease  for 
the  lessee's  default,  see  Downing  v.  Rademacher,  133  Cal.  220 
(85  Am.  St.  Rep.  160). 

In  Laurel  Creek,  etc.,  Co.  v.  Browning,  99  Va.  528,  a  mining 
lease  was  made  under  which  the  lessee  was  to  pay  royalties,  and 
on  breach  of  certain  conditions  as  to  a  right  of  way  for  a  rail- 
road, and  the  mining  and  shipping  of  coal,  the  contract  was  "to 
be  void  at  the  option  of  the  lessor."  On  breach  of  these  condi- 
tions, a  bill  was  filed  in  equity,  praying  that  the  lease  be  declared 
null  and  void,  and  for  partition  of  the  land  among  those  en- 
titled. This  relief  was  granted  by  the  Circuit  Court,  and  in 
affirming  the  decree,  the  Court  of  Appeals  said: 

"The  general  doctrine  is  admitted  that  equity  does  not  favor 
penalties  and  forfeitures,  and  will  not  ordinarily  lend  its  active 
aid  to  enforce  them,  but  will  leave  the  parties  to  pursue  their 
legal  remedies.  Nevertheless,  in  this  State,  the  rule  is  well 
established  that  when  a  court  of  equity  acquires  jurisdiction  of 
a  cause  for  any  purpose,  it  will  retain  it,  and  do  complete  justice 
between  the  parties,  enforcing  if  necessary  legal  rights,  and  apply- 
ing legal  remedies  to  accomplish  that  end.  Especially  is  this 
true  of  suits  for  partition,  where,  by  express  provision  of  the 
statute,  a  court  of  equity  may  take  cognizance  of  all  questions 
of  law  affecting  the  legal  title  that  may  arise  in  the  preceding 
Code  of  Va.  §  2562." 

In  direct  opposition  to  the  doctrine  of  Laurel  Creek,  &c.,  Co.  v. 
Browning,  supra,  stands  the  earlier  case  of  Craig  v.  Hukill,  37 
W.  Va.  520  (16  S.  E.  363).  The  facts  were  almost  identical  with 
those  of  the  Virginia  case,  except  that  the  lease  was  for  the 
purpose  of  drilling  for  petroleum  oil,  instead  of  for  mining  coal. 
The  bill  prayed,  as  in  the  Virginia  case,  for  partition;  and  there 
is  a  statute  in  West  Virginia,  identical  in  effect  with  that  of  Vir- 
ginia, enabling  a  court  of  equity  in  a  suit  for  partition  to  take 
cognizance  of  all  questions  of  law  affecting  the  legal  title.  Code 
W.  Va.  Ch.  79  §  1;  Moore  v.  Harper,  27  W.  Va.  362.    It  was  held 


§  281]  ESTATES    ON    CONDITION.  413 

St.  65,  a  contract  of  lease  of  a  railroad  declared  that  a  viola- 
tion of,  or  failure  to  perform,  an}r  of  its  stipulations  should 
operate  as  a  forfeiture  of  the  lease,  and  a  bill  was  filed  in 

(without  referring  to  the  statute)  that  the  court  had  no  juris- 
diction to  enforce  a  forfeiture  in  the  partition  suit,  and  the  bill 
was  dismissed,  without  prejudice,  however,  to  the  complainant's 
right  to  enforce  the  forfeiture  at  law.  The  court  said  (Brannon, 
J.,  delivering  the  opinion)  : 

"The  estate  under  the  Kennedy  lease  certainly  vested,  and 
the  plaintiff  seeks  by  a  suit  in  equity  to  divest  it,  which  he  can 
only  do  by  declaring  and  enforcing  the  forfeiture  of  that  lease; 
for  the  plaintiff's  right  must  depend  for  its  birth  and  existence  on 
that  forfeiture.  .  .  .  Though  equity  has  jurisdiction  in  parti- 
tion, it  will  not  exercise  it  when  it  can  be  done  only  by  enforcing 
a  forfeiture." 

But  whatever  view  may  be  taken  of  the  Virginia  doctrine  that 
when  equity  has  jurisdiction  of  a  cause  for  another  purpose  (and 
especially,  under  the  statute,  for  partition),  it  will  enforce  a 
forfeiture  if  necessary  to  do  complete  justice,  it  would  seem  that 
the  relief  afforded  in  Laurel  Creek  Co.  v.  Browning,  supra,  was 
by  way  of  rescission  and  not  by  way  of  forfeiture.  For  the  de- 
cree affirmed  not  only  declared  the  lease  at  an  end  and  void, 
but  made  provision  for  ascertaining  the  value  of  the  improve- 
ments on  the  property,  and  restored  the  parties  to  their  rights 
as  they  stood  before  the  lease  was  made. 

It  may  also  be  noted  that  the  principle  laid  down  by  the  court 
in  Laurel  Creek,  Co.  v.  Browning  is  broad  enough  to  justify  the 
rescission  of  the  lease  without  reference  to  forfeiture  for  breach 
of  a  condition  subsequent.  The  court  says  (p.  535):  "When  a 
contract  has  failed  of  its  purpose  by  the  default  of  one  of  the 
parties,  occasioned  by  either  his  inability  or  unwillingness  to 
comply  with  its  provisions,  a  court  of  equity,  having  acquired 
jurisdiction  of  the  parties  and  subject  matter,  will  not  hesitate, 
at  the  instance  and  for  the  relief  of  a  party  not  in  default,  to 
cancel  the  contract  if  it  stands  as  a  barrier  in  the  way  of  doing 
complete  justice  in  the  cause."  And  see  Shenandoah  Land,  d-c., 
Co.  v.  Hise,  92  Va.  238. 

As  thus  stated,  it  would  seem  that  petroleum  and  mining  leases, 
even  in  the  absence  of  a  condition  subsequent,  might  be  rescinded 
in  equity  on  the  same  ground  that  deeds  providing  for  the  support 
of  the  grantor  are  rescinded  on  the  default  of  the  grantee,  viz., 
that  there  is  no  other  adequate  remedy.     (See  as  to  this,  note  to 


414  REAL    PROPERTY.  [Chap.  13 

equity  alleging  a  breach,  and  praying  (among  other  things) 
for  a  declaration  of  forfeiture;  for  an  injunction  to  prevent 
the  defendants  from  resisting  the  complainants'  re-entry ;  and 
for  cancellation  of  the  contract.  The  bill  was  dismissed  with 
costs,  the  court  (Sharswood,  J.)  declaring  that  courts  of 
equity  never  lend  their  assistance  to  the  enforcement  of  a 
forfeiture,  but  leave  the  party  to  his  legal  remedies. 

In  Mills  v.  Evansville  Seminary,  a  case  that  came  three 
times  before  the  Supreme  Court  of  Wisconsin,  it  was  held 
(47  Wis.  354;  2  N.  W.  550)  that  equity  will  not  reform  a 
deed  absolute  in  terms  by  adding  a  condition  subsequent,  and 
then  decree  a  forfeiture  for  its  breach;  nor  will  equity 
reform  such  deed  by  adding  a  condition  in  order  that  the 
party  who  thus  appears  to  be  entitled  to  a  forfeiture  on  its 
breach  may  enforce  such  forfeiture  at  law.  52  Wis.  669  (9 
N.  W.  925.)  For  the  final  disposition  of  the  case  in  favor 
of  the  defendants,  on  the  ground  that  the  condition  (estab- 
lished at  law  by  secondary  evidence  of  the  contents  of  a  lost 
title-bond)  had  not  been  broken,  see  58  Wis.  135  (15  1ST.  W. 
133). 

In  McKim  v.  White  Hall  Co.  2  Md.  Ch.  510,  a  mortgage 
had  been  given  to  secure  the  sum  of  $6,000,  as  a  forfeiture 
by  the  mortgagor  for  breach  of  contract,  and  a  court  of  equity 
declined  to  enforce  the  mortgage  by  a  decree  for  sale.  '  The 
judge  said :  "I  cannot  bring  myself  to  think  that  the  power 
of  this  court  can  be  successfully  invoked  in  this  case  because 
of  the  execution  of  the  mortgage.  The  circumstance  does 
not  take  away  from  the  claim  the  character  of  a  forfeiture, 

§  281,  infra,  on  p.  399.)  And  though  there  be  a  condition  sub- 
sequent, equity  would  not  need  to  enforce  a  forfeiture  in  order 
to  rescind,  but  would  refuse  to  do  so,  preferring  to  grant  rescis- 
sion without  forfeiture,  in  order  to  place  the  parties  in  statu  quo, 
which  is  not  done  in  case  of  forfeiture. 

For  other  cases  on  the  subject  of  this  note,  see  Soper  v.  Guern- 
sey, 71  Pa.  St.  219;  McClellan  v.  Coffin,  93  Ind.  460;  Leonard  v. 
Smith,  80  la.  194  (45  N.  W.  762);  Drown  v.  Ingels,  3  Wash.  424 
(28  Pac.  759). 


§281]  ESTATES    ON    CONDITION.  415 

against  the  enforcement  of  which  the  court  always  turns  its 
face." 

In  Birmingham  v.  Lesan,  77  Me.  494  (1  Atl.  151),  a  bill 
in  equity  was  filed  after  breach  of  a  condition  subsequent  in  a 
support  deed,  but  before  entry  by  the  grantor,  to  quiet  his 
title,  and  the  bill  was  dismissed  on  the  ground  that  this  would 
be  a  declaration  of  forfeiture  in  his  favor,  and  a  court  of 
equity  does  not  lend  its  aid  to  divest  an  estate  for  breach  of 
condition  subsequent.  Afterwards  the  grantor  made  an  entry 
for  breach  of  the  condition,  and  the  court  said  that  he  might 
now  maintain  a  bill  to  remove  a  cloud  from  his  title  (by 
cancellation  of  a  mortgage)  since  he  had  already  vested  the 
title  in  himself  by  such  entr}r,  and  was  in  possession  of  the 
land.  And  see,  to  the  same  effect,  Richter  v.  Richter,  111 
Ind.  456  (12  1ST.  E.  698)  ;  GlocJce  v.  Glocke,  89  K  W.  119 
(§  261,  supra,  at  end  of  note)  ;  Maginnis  v.  Knickerbocker 
Ice  Co.  88  Wis.  300.1 

1  Rescission  of  Support  Deeds. — As  to  the  rescission  in  equity 
of  support-deeds  because  of  the  inadequacy  of  the  remedy  at 
law,  see  Lowman  v.  Craicford,  99  Va.  688,  referred  to  in  note  to 
§  261,  supra.  And  see  in  accord  Jenkins  v.  Jenkins,  3  T.  Mon. 
(Ky.)  327;  Scott  v.  Scott,  3  B.  Mon.  (Ky.)  2;  Wilfong  v.  Johnson, 
41  W.  Va.  283  (23  S.  E.  730).  For  the  doctrine  in  Wisconsin  by 
which  a  covenant  of  support  is  treated  as  a  condition  subsequent, 
and  the  grantor's  title,  after  his  entry  on  the  land,  is  quieted  in 
equity,  see  Glocke  v.  Glocke,  89  N.  W.  119,  explained  in  note  to 
§  261,  supra. 

When  the  failure  of  the  grantee  to  render  the  support  is  wilful, 
the  law  of  Illinois  is  thus  laid  down  in  Cooper  v.  Gum,  132  111.  471 
(39  N.  E.  267)  :  "It  is  well  settled  in  this  State  that  where  one 
has  conveyed  the  property  to  another  in  consideration  of  the  sup- 
port and  maintenance  of  the  grantor  during  his  or  her  natural 
life,  and  the  grantee  refuses  to  perform  his  or  her  agreement,  a 
court  of  equity  will  grant  relief  by  rescinding  the  contract  and 
cancelling  the  deed."  And  it  is  added:  "If  the  rescission  of  the 
contract  cannot  be  referred  to  any  other  head  of  equity  juris- 
diction, it  would  be  proper  to  presume  that  it  was  made  in  the 
first  instance  with  fraudulent  intent." 

In  Leach  v.  Leach,  4  Ind.  628  (58  Am.  Dec.  642),  a  case 
of  support-deed,  the  court  said:     "The  defendant  held  the  land 


416  REAL    PROPERTY.  [Chap.  13 

The  law  is  thus  tersely  stated  in  Fitzhugh  v.  Maxwell,  34 
Mich.  138  (per  Campbell,  J.)  :  "A  court  of  equity  has  no 
jurisdiction  to  enforce  forfeitures.  If  a  party  desires  such 
relief,  he  must  seek  it  at  law  [by  action  of  ejectment,  e.  g.~\ 

upon  a  condition  subsequent  that  he  would  in  all  things  substan- 
tially comply  with  his  covenant.  In  such  a  case  a  failure  to  per- 
form the  obligation  is  a  breach  of  the  condition  subsequent  and 
a  forfeiture  of  the  estate,  and  forms  a  proper  subject  for  the 
interference  of  a  court  of  chancery.  An  examination  of  the  de- 
cree, however,  shows  that  the  relief  was  by  way  of  rescission. 

In  Richter  v.  Richter,  111  Ind.  456  (12  N.  E.  698),  also  a  case 
of  support-deed,  there  was  no  enforcement  by  equity  of  a  forfeit- 
ure, for  the  grantor  was  already  in  possession.  See  §  281,  above. 
The  court  said:  "The  grantor  having  continued  in  possession 
after  condition  broken  by  the  grantee,  this  was  equivalent  to  re- 
entry for  breach  of  condition.  Having  remained  in  possession, 
and  made  formal  and  unequivocal  demand  for  a  reconveyance  on 
the  ground  that  the  grantee  had  failed  to  perform  the  conditions 
on  which  the  deed  was  executed,  nothing  further  was  necessary 
in  order  to  entitle  him  to  maintain  an  action  [in  equity]  to  quiet 
his  title."     See  §  277,  note  on  p.  380. 

As  to  the  policy  of  support-deeds,  Judge  Sharswood  says  in 
Soper  v.  Guernsey,  71  Pa.  St.  219,  223:  "It  is  not  an  uncommon 
arrangement  for  a  father  to  make  a  conveyance  of  his  farm  to 
one  of  his  sons  in  consideration  of  being  supported,  nursed,  and 
attended  during  his  life.  The  wisdom  of  such  a  contract  is 
very  questionable,  even  where  the  most  entire  confidence  is  felt 
at  the  time  in  the  affection  of  the  child.  The  son  of  Sirach  pro- 
nounces emphatically  against  it:  'Give  not  thy  son  and  wife,  thy 
brother  and  friend,  power  over  thee  while  thou  livest;  and  give 
not  thy  goods  to  another,  lest  it  repent  thee,  and  thou  entreat 
for  them  again.  As  long  as  thou  livest,  and  hast  breath  in  thee, 
give  not  thyself  over  to  any.  Far  better  it  is  that  thy  children 
should  seek  to  thee  than  that  thou  shouldst  stand  to  their  cour- 
tesy. In  all  thy  works  keep  to  thyself  the  pre-eminence;  leave 
not  a  stain  in  thine  honor.  At  the  time  when  thou  shalt  end  thy 
days  and  finish  thy  life,  distribute  thine  inheritance.'  Ecclesi- 
asticus,  xxxiii.  19-23." 

As  to  remedy,  in  case  of  a  support-deed,  on  the  grantee's  de- 
fault, the  learned  judge  adds:  "It  is  not  always  easy  to  admin- 
ister justice  in  such  cases  in  conformity  to  law.  The  natural 
feeling  of  right  prompts  to  the  rule  which  would  hold  the  child 


§  281]  ESTATES    ON    CONDITION.  417 

or  by  entry  for  breach  of  conditions.  See  Horsburg  v. 
Baker,  1  Pet.  232;  Marshall  v.  Vicksburg,  15  Wall.  148; 
Livingston  v.  Tompkins,  4  Johns.  Ch.  415  (8  Am.  Dec.  598)  ; 
Boiling  v.  Mayor,  &c,  of  Petersburg,  8  Leigh  (Va.)  224, 
237;  City  of  Marshalltown  v.  Forney,  61  la.  578  (16  N.  W. 
740);  Bonniwell  v.  Madison,  107  la.  85  (77  N.  W.  530); 
Watrous  v.  Allen,  57  Mich.  362  (58  Am.  Eep.  363) ;  Keller 
v.  Lewis,  53  Cal.  114;  McCormicl  v.  Rossi,  70  Cal.  474  (15 
Pac.  35)  ;  Raley  v.  Umatilla  County,  15  Or.  172  (3  Am. 
St.  Eep.  142,  151) ;  note  to  Ladd  v.  City  of  Boston,  21  Am. 
Eep.  485. 

to  the  strict  performance  of  his  contract,  and  give  to  the  parent 
the  right  to  recall  the  gift  if  he  fails.  Yet  it  is  not  always  pos- 
sible to  apply  such  a  rule.  The  deed  may  want  the  essential 
words  to  make  a  condition.  A  condition  in  a  conveyance  may  be 
enforced  by  ejectment,  but  a  consideration,  even  amounting  to 
a  covenant  on  the  part  of  the  vendor,  cannot.  Cook  v.  Trimble, 
9  Watts,  15;  Garner  v.  McNulty,  3  Wright,  473;  Perry  v.  Scott,  1 
P.  P.  Smith,  119."  That  ejectment  will  not  lie  for  breach  of 
covenant,  see  also  King  v.  Norfolk,  &c,  R.  Co.,  99  Va.  625. 

It  would  seem,  however,  that  in  case  of  support-deeds  a  court 
of  equity  will  usually  find  a  way  to  administer  the  relief  declared 
appropriate  by  Judge  Sharswood,  viz.,  by  allowing  the  grantor  to 
recall  his  gift  for  the  default  of  the  grantee.  See  cases  cited  in 
§  281,  above,  and  in  §  261,  supra,  n.  1,  where  the  language  of  the 
Wisconsin  court  in  Glocke  v.  Glocke,  89  N.  W.  118,  is  quoted  as  fol- 
lows: "Such  contracts  [i.  e.,  support-deeds]  have  come  to  be 
looked  upon  as  almost,  if  not  quite  improvident  in  their  incep- 
tion, and  in  this  view  courts  of  equity  have  gone  to  great  lengths 
to  remedy  the  mischief."  In  that  case  this  was  done  by  treating 
a  covenant  as  a  condition  subsequent.  In  Lowman  v.  Crouch, 
99  Va.  688,  the  court  refused  to  do  this,  but  granted  rescission 
of  the  conveyance  by  reason  of  the  grantee's  breach  of  covenant. 
In  Cooper  v.  Gum,  supra,  the  Illinois  court  granted  rescission  on 
the  ground  that  the  refusal  of  the  grantee  to  render  the  support 
promised  justified  a  presumption  that  the  contract  was  made  by 
him  in  the  first  instance  with  fraudulent  intent.  With  these  doc- 
trines to  choose  from,  a  court  of  equity  would  no  doubt  ordinarily 
grant  the  measure  of  relief  deemed  just  by  Judge  Sharswood,  and 
the  grantor  would  recover  his  property  on  the  grantee's  failure 
to  render  the  stipulated  support. 

27 


418  REAL    PROPERTY.  [Chap.  13 

§  282.    Breach    of    Condition    Subsequent — Equity    Will 
Sometimes  Kelieve  Against  Forfeiture  Therefor.1 — It  is  not 

proposed  to  enter  at  large  on  the  subject  of  relief  in  equity 
against  penalties  and  forfeitures.  For  extended  discussion, 
see  2  Wh.  &  T.  Lead.  Cas.  in  Eq.  (4th  ed.),  (1802)  ;  2  Story, 
Eq.  Jur.  §  1301;  1  Pom.  Eq.  §  432;  2  Min.  Ins.  (4th  ed.), 
298;  and  note  to  Smith  v.  Marriner  (Wis.),  68  Am.  Dec.  85. 
For  clearness  of  view,  four  cases  may  be  put,  the  first  two 
being  penalties,  and  the  last  two  forfeitures.    The  difference 

1  Condition  Precedent — Will  Equity  Relieve  Against? — In 
Davis  v.  Gray,  16  Wall.  203,  the  law  is  thus  stated  (p.  229): 
"There  is  a  wide  distinction  between  a  condition  precedent,  where 
no  title  has  vested  and  none  is  to  vest  until  the  condition  is  per- 
formed, and  a  condition  subsequent  operating  by  way  of  defea- 
sance. In  the  former  case  equity  can  give  no  relief.  The  failure  to 
perform  is  an  inevitable  bar.  No  right  can  ever  vest.  The  result  is 
very  different  where  the  condition  is  subsequent.  There  equity 
will  interpose,  and  relieve  against  the  forfeiture  upon  the  princi- 
ple of  compensation,  where  that  principle  can  be  applied,  giving 
damages,  if  damages  should  be  given,  and  the  proper  amount  can 
be  ascertained." 

This  emphatic  statement  of  the  law  seems  clearly  right  on  prin- 
ciple. When  there  has  been  a  failure  to  perform  a  condition  prec- 
edent, there  is  no  question  of  forfeiture  at  all.  The  most  that  can 
be  said  is  that  a  grantee  on  such  condition  had  a  chance  to  gain  an 
estate,  and  has  lost  this  chance  by  non-performance.  To  relieve 
against  this  loss,  and  vest  the  estate  without  performance,  is  to 
create  the  estate  in  the  grantee,  and  this  without  a  compliance 
with  the  terms  imposed  by  the  grantor.  This,  it  would  seem,  is 
beyond  the  power  even  of  a  court  of  equity. 

The  authorities,  however,  on  this  question  are  in  conflict.  See 
2  Story  Eq.  Jur.  §  1315,  and  note  collecting  the  old  authorities;  1 
Pom.  Eq.  §  455;  2  Wh.  &  T.  Lead.  Cas.  in  Eq.  2047;  2  Min.  Ins. 
(4th  ed.)  299;  1  Lorn.  Dig.  357;  note  to  Wells  v.  Smith,  31  Am. 
Dec.  278;  note  to  Smith  v.  Marriner  (Wis.)  68  Am.  Dec.  87,  88; 
note  to  Burclis  v.  Burdis  (Va.)  70  Am.  St.  Rep.  829-830. 

The  cases  in  Virginia  seem  to  favor  the  doctrine  that  a  court  of 
equity,  when  compensation  can  be  made,  may  relieve  against  fail- 
ure to  perform  a  condition  precedent.  See  Columbia  College  v. 
Clopton,  7  Gratt.  168;  Keffer  v.  Grayson,  76  Va.  517;  Sclden  v. 
Camp,  95  Va.  527;  Grubb  v.  Burford,  98  Va.  553. 


§  282]  ESTATES    ON    CONDITION.  419 

is  that  when  on  the  promisor's  default,  whether  in  the  pay- 
ment of  money  or  in  the  doing  of  some  collateral  act,  a  sum 
of  money  is  to  be  paid  by  him  (larger,  when  the  default  is  in 
payment  of  money,  than  the  sum  not  paid  with  lawful  inter- 
est), this  sum  of  money  is  in  the  nature  of  a  penalty.  On  the 
other  hand,  when  for  the  non-payment  of  money,  or  the 
failure  to  do  a  collateral  act,  the  promisor  is  to  incur  a  lia- 
bility to  lose  his  property,  real  or  personal,  such  liability,  if 
enforced,  is  by  way  of  forfeiture.     1  Pom.  Eq.  §  436. 

Bearing  this  distinction  in  mind,  the  four  cases  may  be 
thus  stated : 

1.  A  promises  to  pay  B  $100,  on  a  clay  named,  and  on  A's 
default,  A's  liability  to  B  is  to  be  increased,  and  to  become 
$200. 

2.  A  promises  to  make  certain  improvements  on  land 
leased  to  him  by  B ;  and  on  A's  default,  A  is  to  become  liable 
to  pay  B  $200. 

3.  A  promises  to  pay  B  $100  on  a  day  named  as  rent  for 
land  leased  to  him  by  B ;  and  on  A's  default,  A  is  to  become 
liable  to  lose  the  lease. 

4.  A  promises  to  make  certain  improvements  on  land 
leased  to  him  by  B ;  and  on  A's  default,  A  is  to  become  liable 
to  lose  the  lease. 

Referring  to  the  distinction  stated  above,  it  will  be  seen 
that  (1)  and  (2)  are  penalties,  while  (3)  and  (4)  are  for- 
feitures. Under  (3)  and  (4),  the  forfeitures  provided  for 
on  default  are  clearly  for  the  breach  of  a  condition  subse- 
quent; and  undev  (1)  and  (2)  the  same  character  was  given 
to  the  penalties  by  the  usual  form  of  obligation — A  acknow- 
ledging himself  in  each  case  to  be  bound  to  B  for  the  payment 
of  $200,  (the  penalty)  to  be  discharged,  however,  in  the  one 
case  by  A's  punctual  payment  of  $100  (the  real  debt),  and 
in  the  other  by  A's  faithful  performance  of  his  promise 
to  make  the  improvements.  See  Leary  v.  Laflin,  101  Mass. 
334. 

Assuming  now  that  A  makes  default,  will  equity  relieve 
him  from  the  payment  of  the  money  by  way  of  penalty,  or 


420  REAL    PROPERTY.  [Chap.  13 

from  the  forfeiture  of  the  lease  ?  And,  if  so,  on  what  terms  ? 
To  answer  these  questions,  penalties  and  forfeitures  must  be 
considered  separately. 

I.  Penalties  (1  and  2,  supra).  "The  equity  for  relief 
against  the  enforcement  of  penalties,"  says  Adams  {Equity, 
108),  "originates  in  the  rule  which  formerly  prevailed  at 
law,  that  on  breach  of  contract  secured  by  penalty,  the  full 
penalty  might  be  enforced  without  regard  to  the  damage  sus- 
tained." But  in  the  view  of  a  court  of  equity,  the  purpose 
of  B,  in  the  above  cases,  in  imposing  a  penalty  on  A,  is  to 
secure  the  performance  of  A's  promise,  and  not  to  speculate 
on  the  possibility  of  non-performance,  in  the  hope  of  securing 
a  greater  benefit  by  way  of  penalty.  Hence,  when  A  is  in 
default,  equity  will  relieve  against  the  penalty  (which  the 
common  law  exacts),  if  the  case  be  such  that  the  damages 
can  be  ascertained,  and  adequate  compensation  can  be  made 
to  B  for  A's  default. 

In  the  language  of  Lord  Macclesfield :  "It  is  the  recompense 
that  gives  this  court  [equity]  a  handle  to  grant  relief." 
Peachy  v.  Duke  of  Somerset,  1  Strange,  447.  Such  recom- 
pense in  damages  is  deemed  to  be  in  accordance  with  the 
original  intent  of  both  parties;  and  the  party  seeking  to 
enforce  the  penalty  receives,  in  lieu  thereof,  all  that  he  ought 
to  expect  or  demand.  2  Min.  Ins.  (4th  ed.),  298;  Clark  v. 
Barnard,  108  U.  S.  436,  455. 

Applying  this  principle  to  the  first  case  of  penalty  stated 
above,  where  the  payment  ad  diem  of  a  sum  of  money  is 
secured  by  a  promise  to  pay  a  larger  sum  in  the  event  that  the 
debtor  makes  default,  equity,  if  the  penalty  be  incurred,  will 
relieve  against  it  as  a  matter  of  course;  for  it  is  considered 
that  mere  delay  in  the  payment  of  money  is  adequately  com- 
pensated by  the  payment  of  the  real  debt,  together  with  in- 
terest and  costs.  And  this  doctrine  of  equity  was  made  the 
rule  of  law  in  England  by  the  statute  of  4  Anne,  c.  16,  §  13, 
re-enacted  in  Virginia  at  an  early  day,  and  now  found  in  the 
Code,  §  3393,  as  follows :  "When  there  is  a  recovery  on  a 
bond  with  condition  for  the  payment  of  money,  the  judgment 


§282]  ESTATES    ON    CONDITION.  421 

shall  be  for  the  penalty  of  the  bond,  to  be  discharged  by  the 
payment  of  the  principal  and  the  interest  due  thereon." 

As  to  the  second  case,  where  the  penalty  is  to  secure  the 
doing  or  not  doing  of  some  collateral  act,  the  law  is  laid  down 
by  both  Story  and  Pomeroy  that  equity  will  only  grant  relief 
against  a  penalty  on  condition  that  adequate  compensation 
can  be  made;  and  Story  states  expressly  that  if  it  cannot 
be  made  equity  will  not  interfere.  2  Story  Eq.  Jur.  §  1314; 
1  Pom.  Eq.  §  433.  It  is  believed,  however,  that  the  doctrine 
of  penalties  is  here  superseded  by  that  of  liquidated  damages ; 
and  that  equity  does  not  refuse  to  relieve  against  a  true 
penalty  because  of  the  difficulty  of  assessing  compensatory 
damages,  but  rather  on  that  ground  declines  to  regard  the 
sum  agreed  on  as  a  penalty  at  all,  thus  leaving  it  to  be  en- 
forced according  to  the  stipulation  of  the  parties. 

For  full  discussion  of  the  law  of  liquidated  damages — an 
anticipatory  agreement  at  the  time  of  making  a  contract, 
involving  uncertain  damages  on  breach,  as  to  the  amount  of 
recovery  in  case  of  default,  the  law  thus  allowing  the  parties 
to  make  a  conjectural  estimate  of  damages  in  advance  in- 
stead of  leaving  it  to  the  guess  of  a  jury — see  note  to  Graham 
v.  Beckham,  1  Am.  Dec.  331;  1  Pom.  Eq.  §§  440-447.1 

1  Penalty  for  Nox-Performaxce  of  Collateral  Act. — The  doc- 
trine of  the  text  that  in  this  case  equity  will  always  relieve  on  the 
payment  of  damages  seems  to  be  confirmed  by  the  statutes,  in  Eng- 
land and  Virginia  providing  for  relief  at  law,  which  declare  tbat 
in  every  case  of  a  penalty  a  judgment  therefor  shall  be  discharged 
by  the  payment  of  the  actual  damages.  See  8  &  9  Will.  3,  c.  11, 
§  8;  Code  Va.  §  3394.  For  full  explanation  of  the  English  statute, 
see  note  to  Gainsford  v.  Griffith,  1  Saund.  Rep.  58. 

The  Virginia  statute  (after  other  matter  not  relevant  to  the  pres- 
ent point)  reads  as  follows:  "In  any  other  action  for  a  penalty 
for  the  non-performance  of  any  condition,  covenant,  or  agree- 
ment, the  plaintiff  may  assign  as  many  breaches  as  he  may 
think  fit,  and  shall  in  his  declaration  or  scire  facias  assign  the  spe- 
cific breaches  for  which  the  action  is  brought  or  the  scire  facias 
sued  out.  The  jury  impaneled  in  any  such  action  shall  ascertain 
the  damages  sustained,  or  the  sum  due,  by  reason  of  the  breaches 


422  REAL    PROPERTY.  [Chap.  13 

II.  Forfeitures  (3  and  4,  supra).     In  the  case  under  (3) 
above,  when  the  tenant  is  in  default  in  the  payment  of  rent, 

assigned,  and  judgment  shall  be  entered  for  the  penalty,  to  be  dis- 
charged by  the  payment  of  what  is  so  ascertained,  and  such  fur- 
ther sums  as  may  be  afterwards  assessed,  or  be  found  due  upon  a 
scire  facias  assigning  a  further  breach.  Such  scire  facias  may  be 
sued  out  from  time  to  time,  by  any  person  injured,  against  the  de- 
fendant or  his  personal  representative;  and  for  what  may  be  as- 
sessed or  found  due  on  the  new  breach  or  breaches  assigned,  ex- 
ecution may  be  awarded."  It  will  be  observed  that  the  statute 
embraces  official  bonds  given  by  sheriffs  and  others,  and  provides 
that  the  judgment  once  given  for  the  penalty  in  an  action  for  a 
breach  shall  stand  as  a  reservoir  of  damages  to  satisfy  demands 
by  the  plaintiff  or  others  for  further  defaults  in  official  duty. 

As  to  the  suggestion  above  that  when  equity  declines  to  relieve 
against  a  penalty,  so-called,  it  is  because  the  sum  agreed  on  is  con- 
sidered to  be  not  a  penalty  but  liquidated  damages,  see  note  to 
Gains  ford  v.  Griffith,  supra,  where  it  is  said  (p.  58  c) :  "Whenever 
the  sum  mentioned  in  any  instrument  must,  from  the  express  lan- 
guage of  the  instrument,  or  from  necessary  implication,  be  consid- 
ered as  the  ascertained  or  liquidated  damages  agreed  to  be  paid 
by  one  party  to  the  other  on  the  happening  of  a  particular  event, 
or  the  performance  or  omission  of  a  particular  act,  the  statute  (8 
&  9  Will.  3,  c.  11,  §  8,  referred  to  supra)  will  not  apply;  for  in  such 
case  the  sum  is  not  a  penal  sum;  and  courts  of  equity  will  not  re- 
lieve against  such  sum,  though  they  will  against  a  penalty." 

Three  cases  may  be  cited  (out  of  many)  where  a  sum  to  be  paid 
on  the  promisor's  default  has  been  construed,  by  reason  of  the  dif- 
ficulty of  estimating  the  loss  flowing  from  a  breach,  to  be  liqui- 
dated damages  to  be  enforced,  and  not  a  penalty  to  be  relieved 
against.  These  are  (1)  Keeole  v.  Keeole,  85  Ala.  552,  5  So.  149 
(promise  by  a  business  manager  to  wholly  abstain  from  intoxicat- 
ing liquors,  and  to  continue  and  remain  sober,  and  in  the  event  of 
intoxication  to  pay  $1000);  (2)  Ward  v.  Hudson  River,  &c,  Co., 
125  N.  Y.  230  (promise  by  a  building  contractor  to  erect  houses  by 
a  certain  date,  and  in  case  of  default  to  pay  $1540) ;  (3)  Leary  v. 
Laflin,  101  Mass.  334  (promise  by  the  lessee  of  a  livery  stable  to 
conduct  it  in  a  manner  as  satisfactory  to  all  reasonable  parties  as 
the  lessor  had  done,  and  at  the  end  of  the  term  to  surrender  it  "in 
as  good  repute  and  run  of  custom  as  now  thereto  pertain,"  and  on 
default  to  pay  $1000). 

In  Leary  v.  Laflin,  supra,  the  Court  says:    "From  the  nature 


§  282]  ESTATES    ON    CONDITION.  423 

it  is  well  settled  that  equity  will  relieve  against  the  forfeiture 
on  the  subsequent  payment  of  the  rent,  with  interest  and 
costs.  And  in  this  case  also,  relief  may  now  by  statute  be 
afforded  at  law.  See  for  the  English  statutes,  Williams  on 
Eeal  Prop.  (17th  ed.),  389.  For  the  Virginia  statutes,  see 
§  59  supra;  2  Min.  Ins.  (4th  eel.),  277,  300. 

When,  however,  a  forfeiture  has  accrued  under  (4)  above, 
by  the  reason  of  the  doing  or  not  doing  of  some  collateral  act 
(other  than  the  payment  of  rent),  the  rule  is  that  equity 
affords  no  relief  unless  such  act  be  in  substance  the  payment 
of  money,  so  as  to  be  assimilated  to  the  payment  of  rent,  and 
this  through  equity  would  relieve  upon  payment  of  the  actual 
damages  if  the  case  were  one  of  penalty  and  not  forfeiture. 
It  is  settled,  therefore,  that  equity  does  not  always  regard  a 
forfeiture  (as  it  does  a  penalty)  as  mere  security  for  the 
doing  of  collateral  acts;  but,  except  under  (3)  above,  it 
allows  a  party  entitled  at  law  to  a  forfeiture  to  enforce  it, 
instead  of  compelling  him  to  accept  in  lien  thereof  damages 
to  be  assessed  by  a  jury.     1  Pom.  Eq.  §  450. 

Thus  if  there  be  a  breach  of  a  lawful  condition  in  re- 

of  the  case,  the  actual  damages  resulting  from  a  breach  of  this 
agreement  are  not  capable  of  being  ascertained  by  any  satisfac- 
tory and  known  rule;  and  it  was  manifestly  the  intention,  as  it 
was  clearly  within  the  power,  of  the  parties  not  to  leave  them 
to  the  uncertain  estimate  of  a  jury,  but  to  fix  them  by  express 
agreement." 

And  in  Keeble  v.  Keeble,  supra,  it  is  said  by  Somerville,  J.: 
"One  may  sell  out  the  good  will  of  his  business  in  a  given  lo- 
cality, and  agree  to  abstain  from  its  further  prosecution,  or,  in 
the  event  of  the  breach  of  his  agreement,  to  pay  a  certain  sum 
as  liquidated  damages;  as,  for  example,  not  to  run  a  steamboat 
on  a  certain  river  or  to  carry  on  the  hotel  business  in  a  particu- 
lar town,  not  to  re-establish  a  newspaper  for  a  given  period,  or  to 
carry  on  a  particular  branch  of  business  within  a  certain  dis- 
tance from  a  named  city.  In  all  such  cases,  as  often  decided,  it  is 
competent  for  the  parties  to  stipulate  for  a  gross  sum  by  way  of 
liquidated  damages  for  the  violation  of  the  agreement,  and  for 
the  very  reason  that  such  damages  are  uncertain,  fluctuating,  and 
incapable  of  easy  ascertainment." 


424  REAL    PROPERTY.  [Chap.  13 

straint  of  alienation  or  marriage,  the  violation  of  a  condition 
restraining  the  sale  of  liquor  on  certain  premises,  a  failure 
to  construct  culverts  as  required  by  a  condition  subsequent, 
the  violation  of  a  building  restriction  in  the  nature  of  a  con- 
dition, equity  will  not  relieve  against  the  forfeiture  which 
may  be  thereby  incurred.  And  in  case  of  a  tenant,  equity 
will  not  relieve  against  a  forfeiture  incurred  by  him  by 
failure  to  repair,  failure  to  insure,  for  breach  of  a  covenant 
not  to  assign  without  license,  or  for  the  doing  or  not  doing  of 
any  specific  act  damages  for  whose  breach  would  have  to  be 
assessed  by  a  jury.  See  2  Story  Eq.  Jur.  §  1323;  1  Pom.  Eq. 
§  454;  2  Wh.  &  T.  L.  C.  in  Eq.  (1102)  ;  Grigg  v.  Landis, 
19  JST.  J.  Eq.  350,  s.  c.  21  Id.  514;  Maginnis  v.  Knicker- 
bocker Ice  Co.  (Wis.),  88  N.  W.  300. 

In  Klein  v.  Ins.  Co.  104  U.  S.  88,  it  is  held  that  a  con- 
dition in  a  policy  of  life  insurance,  that  if  the  stipulated 
premium  be  not  paid  on  or  before  a  certain  day  the  policy 
shall  cease  and  determine,  is  of  the  very  essence  and  sub- 
stance of  the  contract,  and  that  a  court  of  equity  cannot 
relieve  against  a  forfeiture  caused  by  failure  so  to  pay.  The 
court  said :  "No  compensation  can  be  made  to  a  life  insurance 
company  for  the  general  lack  of  punctuality  on  the  part  of  its 
patrons."    See  1  Pom.  Eq.  §  456,  n.  2. 

§  283.  Breach  of  Condition  Subsequent — Waiver  of  For- 
feiture.— This  subject  has  already  been  referred  to  inciden- 
tally (§  277,  supra),  and  it  has  been  seen  that,  since  the 
mere  breach  of  a  condition  subsequent  does  not  of  itself  cause 
forfeiture,  the  grantor  may  waive  the  enforcement  of  the 
right  to  forfeit;  and,  when  this  is  once  done,  the  title  of  the 
grantee,  notwithstanding  his  breach  of  the  condition,  is  no 
longer  forfeitable  therefor.  Thus  in  Preston  v.  Bosworth, 
153  Ind.  458  (74  Am.  St.  Eep.  313),  it  is  held  that  a  com- 
plaint in  an  action  to  recover  an  estate  claimed  to  have  been 
forfeited  for  breach  of  a  condition  subsequent  by  a  grantee 
in  possession  is  demurrable  when  it  alleges  only  the  breach 
of  the  condition,  but  does  not  state  that  any  steps  were  taken 


§§  282, 283]  ESTATES    ON    CONDITION.  425 

to  enforce  the  forfeiture.  The  court  says :  "A  breach  of  the 
condition  subsequent  is  pleaded.  But  a  breach  does  not  com- 
plete a  forfeiture.  A  breach  may  be  waived,  and  is  not, 
therefore,  self -operative  to  divest  the  grantee's  title.  If  not 
waived,  a  breach  may  be  made  the  occasion  of  re-entry  and 
enforcement  of  forfeiture.  A  complaint  must  exhibit  a  com- 
plete right  of  action."  For  a  discussion  of  waiver  of  for- 
feiture, see  note  to  Cross  v.  Carson  (Ind.)  44  Am.  Dec.  746; 
1  Pom.  Eq.  §  451,  n.  1 ;  note  to  Dumpofs  Case,  1  Smith, 
Lead.  Cas.  (7th  ed.)  95;  Taylor,  L.  &  T.  §  497. 

With  reference  to  the  mode  of  waiver,  it  is  said  in  Sharon 
Iron  Co.  v.  City  of  Erie,  41  Pa.  St.  341,  351 :  "The  doctrine 
that  a  forfeiture  may  be  waived  by  the  party  who  has  the 
right  to  avail  himself  of  the  breach  of  a  condition,  and  that 
he  may  do  this  by  acts  as  well  as  by  express  agreement,  is  a 
familiar  one."  Indeed,  the  law  favors  the  waiver  of  a  for- 
feiture; and  such  waiver  is  readily  implied  from  any  con- 
duct on  the  part  of  the  grantor  on  condition  inconsistent  with 
an  intention  to  enforce  a  forfeiture  for  its  breach,  and  espe- 
cially when  his  acts,  whether  of  commission  or  omission, 
are  such  as  to  bring  him  within  the  doctrine  of  estoppel. 
Garnliart  v.  Finney,  40  Mo.  449  (93  Am.  Dec.  303). 

As  to  active  conduct  which  amounts  to  a  waiver  of  the 
breach  of  the  condition,  the  most  frequent  example  is  where 
a  lease  contains  a  clause  of  re-entry  for  breach  of  a  condition 
subsequent,  and  the  landlord,  knowing  that  liability  to  the 
forfeiture  has  been  incurred  (see  Silva  v.  Campbell,  84  Cal. 
420,  24  Pac.  316),  accepts  rent  as  such  which  has  fallen 
due  since  the  breach  of  the  condition.  Thus  in  McEildoe  v. 
Darracott,  13  Grat.  278,  a  lease  was  made  on  condition  that 
the  lessor  should  have  right  of  re-entry  if  the  lessee  should 
underlet  the  property  without  the  license  of  the  lessor;  and 
the  lessor's  conduct,  with  knowledge  of  a  sublease  without 
license,  was  held  to  amount  to  a  waiver.  The  court  said : 
'"Each  and  all  of  these  acts,  to-wit :  the  demand  of  the  rent 
[of  the  lessee],  the  distress  for  it,  the  acceptance  of  it,  and 


426  REAL    PROPERTY.  [Chap.  13 

the  express  declaration  made  at  the  time  of  its  payment, 
were  plain  and  palpable  affirmations  and  recognitions  of  the 
existing  tenancy  of  E.  F.  Darracott  [the  lessee].  Why,  then, 
are  they  not  a  waiver  of  the  forfeiture  ?" 

A  similar  doctrine  is  laid  down  in  Dougal  v.  Fryer,  3  Mo. 
40,  22  Am.  Dec.  458  (waiver  of  breach  of  condition,  that  a 
deed  should  be  void  unless  purchase-money  be  paid  by  a  cer- 
tain time,  by  the  grantor's  accepting  payment  after  that 
time)  ;  and  in  DunJclee  v.  Hooper,  69  Vt.  65,  37  Atl.  225 
(waiver  of  breach  of  condition  of  support  by  the  grantor's  re- 
turn and  acceptance  of  support  after  having  left  the  premises 
for  eleven  weeks  for  non-support).  And  see  Deaton  v.  Taylor, 
90  Va.  219;  Ireland  v.  Nichols,  46  K  Y.  413;  Murray  v. 
Harway,  56  N.  Y.  337;  Chippewa  Lumber  Co.  v.  Tremper, 
75  Mich.  36  (13  Am.  St.  Eep.  420)  ;  Jenhs  v.  Palowslci,  98 
Mich.  110  (39  Am.  St.  Eep.  522)  ;  Moses  v.  Loomis,  156  111. 
392  (47  Am.  St.  Eep.  194,  and  note  p.  197)  ;  Bonniwell  v. 
Madison,  107  la.  85  (77  K  W.  530)  ;  Alexander  v.  Alexan- 
der, 156  Mo.  413  (57  S.  W.  110). * 

1  Continuous  and  Non-Continuous  Conditions — Effect  of 
Waiver  of  Breach. — Conditions  subsequent  in  a  lease  may  be 
either  single,  and  capable  of  but  one  breach,  and  that  "once  for 
all";  or  they  may  be  continuous  in  their  nature,  so  that  non- 
performance constitutes  a  continuing  breach.  And  und.er  con- 
tinuing breach,  the  lessee's  default  may  be  uninterrupted;  or  after 
one  default,  another  may  occur  after  an  interval,  constituting  a 
recurring  breach. 

The  importance  of  the  above  distinction  is  with  respect  to  the 
effect  of  waiver  of  a  breach.  If  the  waiver  be  of  the  breach  of  a 
non-continuous  condition,  the  condition  itself  is  wholly  dis- 
charged. On  the  other  hand,  when  the  condition  is  continuous, 
and  the  breach  may  be  continuing  or  recurrent,  a  waiver  of  a 
breach  which  has  continued  up  to  a  certain  time,  or  of  one  de- 
fault, is  a  waiver  only  up  to  that  time,  or  of  that  default,  and  is 
not  a  waiver  of  the  continuation  of  the  breach,  or  of  a  repetition 
of  the  default. 

As  an  example  of  a  single  condition,  which  is  wholly  discharged 
by  a  waiver  after  breach,  reference  is  made  to  McGlynn  v.  Moore, 
25  Cal.  384,  where  a  forfeiture  was  sought  to  be  enforced  for  the 


§  283]  ESTATES    ON    CONDITION.  427 

As  to  passive  conduct  which  operates  b}-  estoppel  as  a  waiver 
of  a  breach  of  a  condition  subsequent,  see  Ludlow  v.  New 
York,  &c,  R.  Co.,  12  Barb.  (2ST.  Y.)  440,  where  a  grant  of 

lessee's  breach  of  a  condition  to  build  a  warehouse,  as  specified 
in  the  lease,  within  two  years  from  its  date.  The  lessor  received 
from  the  lessee  rent  accruing  subsequent  to  his  breach  of  the 
condition;  and  this  was  relied  on  by  the  lessee  as  a  waiver  of  the 
forfeiture.  It  was  claimed  by  the  lessor  that  the  condition  was 
continuous,  and  that  the  lessee's  continued  failure  after  the  two 
years  to  build  the  warehouse  was  a  continuing  breach,  and  that 
this  gave  the  lessor  a  new  right  of  entry.  But  the  court  held  that 
a  condition  to  build  within  a  given  period  is  non-continuous,  and 
is  capable  of  but  a  single  breach;  and  that  this  having  been 
waived  by  the  lessor,  his  right  of  re-entry  was  gone  forever. 

A  good  example  of  a  continuous  condition,  whose  breach  is  con- 
tinuing, so  that  the  lessor's  waiver  by  receipt  of  rent  after  a 
breach  is  of  the  past  default  only,  is  found  in  Bleecker  v.  Smith, 
13  Wend.  (N.  Y.)  530.  Here  the  condition  was  that  the  lessee 
should  plant  a  certain  number  of  apple  trees  on  the  demised 
premises,  and  should  replace  those  that  decayed  or  were  destroyed, 
so  as  always  to  keep  up  the  given  number  during  the  term.  It 
was  claimed  by  the  lessee,  when  ejectment  was  brought  to  en- 
force a  forfeiture  for  breach  of  the  condition,  that  the  lessor's 
receipt  of  rent  after  a  breach  had  discharged  the  condition,  so 
that  there  could  be  no  subsequent  breach.  But  it  was  held  that 
the  condition  was  continuous,  and  that  the  lessor  could  enforce  a 
forfeiture  for  a  new  breach  occurring  since  his  receipt  of  rent. 
The  court  said: 

"The  lessee  was  bound  during  the  continuance  of  his  term  to 
preserve  the  number  of  apple  trees;  and  the  lessor  is  at  liberty 
at  any  time  to  enforce  the  forfeiture,  when  a  default  exists  or 
accrues  after  the  payment  of  rent.  The  acceptance  of  rent  waives 
all  forfeiture  up  to  that  time.  The  lessor  cannot  show  any  de- 
fault in  the  lessee  previous  to  the  payment  of  the  rent.  For  ex- 
ample, rent  was  paid  in  1820;  the  lessor  cannot  go  back  beyond 
that  time  to  prove  a  forfeiture.  If  in  1821  the  lessee  had  planted 
the  trees,  he  was  safe  from  forfeiture.  So  also  rent  was  received 
in  1830;  and  for  the  purpose  of  sustaining  this  action,  the  plain- 
tiff cannot  prove  any  violation  of  the  condition  before  that  time." 
But  it  was  added:  "Here  is  a  breach  of  condition  since  the  pay- 
ment of  rent,  since  the  lessor  admitted  the  lease  was  in  force, 
and  the  estate  in  existence.    If  the  estate  exists,  it  is  by  force  of 


428  REAL  PROPERTY.  [Chap.  13 

land  in  fee  was  made  to  a  railroad  company  on  condition  sub- 
sequent that  a  railroad  should  be  completed  through  the  land 
granted  by  a  certain  time.  This  condition  was  broken.  But 
after  the  time  had  elapsed,  the  grantor,  with  knowledge  of 
the  breach,  permitted  the  company  to  go  on  and  incur  ex- 
pense in  constructing  the  road,  making  no  objection ;  and  this 
was  held  a  waiver  of  the  forfeiture.    Another  example  of  a 

the  lease,  and  the  estate  thereby  created  is  an  estate  upon  con- 
dition. Such  estate  did  exist  in  1830,  when  the  last  rent  was  re- 
ceived; but  the  condition  having  been  subsequently  broken,  the 
lessor  has  a  right  to  enter  for  the  breach,  precisely  as  he  might 
have  done  for  the  first  breach  before  he  waived  his  entry  by  re- 
ceiving rent.  The  language  of  the  lessor  to  the  lessee  by  accept- 
ing rent  is  this:  'I  will  not  enforce  the  forfeiture  against  you  at 
present,  but  continue  the  lease  and  estate  on  the  former  terms 
and  conditions.'  " 

For  an  example  of  a  continuous  condition  whose  breach  is  re- 
current, see  the  familiar  case  of  a  condition  in  a  lease  restrain- 
ing the  tenant  from  subletting.  Here  the  doctrine  is  that  the 
condition  is  continuous  in  that  there  may  be  successive  sublet- 
tings,  each  of  which  will  be  a  recurrent  ground  of  forfeiture. 
But  each  sublease  is  a  single  breach,  and  the  sublessee's  occu- 
pancy under  it  does  not  constitute  a  continuing  breach.  Hence, 
a  receipt  of  rent  after  the  first  sublease  waives  any  right  of  re- 
entry therefor;  but  this  right  of  re-entry  again  becomes  operative 
on  a  second,  or  any  subsequent,  sublease.  Thus  in  Ireland  v. 
Nichols,  46  N.  Y.  413,  417,  it  is  said:  "When  the  plaintiff  waived 
this  right  [of  entry  by  reason  of  the  sublease]  by  receipt  of  rent 
[from  the  lessee],  the  right  founded  upon  this  subletting,  or  the 
occupancy  in  pursuance  thereof,  was  gone.  It  is  true  that  the  con- 
dition not  to  sublet  was  continuous;  and  had  Nichols  [the  lessee] 
made  a  new  contract  for  subletting  any  portion  of  the  premises, 
a  forfeiture  would  thereby  have  been  incurred,  which  the  plain- 
tiff [lessor]  would  have  been  at  liberty  to  enforce.  But  no  such 
new  contract  has  been  made.  The  case  expressly  shows  that  the 
possession  of  the  subtenants  was  in  pursuance  of  the  contract 
made  in  May.  The  forfeiture  incurred  by  this  contract  having 
been  waived  by  the  plaintiff  was  not  revived  by  the  subsequent 
possession  of  the  subtenants  in  pursuance  thereof."  And  see,  in 
accord,  McKildoe  v.  Darracott,  13  Gratt.  278,  286. 

As  to  a  condition  not  to  assign,  it  is  sometimes  distinguished 


§283]  ESTATES    ON    CONDITION.  429 

similar  character  is  found  in  Scovill  v.  McMahon,  62  Conn. 
378  (36  Am.  St.  Rep.  350),  where  it  is  said:  "The  alleged 
right  to  enter  for  failure  to  maintain  a  fence  [around  a  bury- 
ing ground]  accrued  about  forty-five  years  ago,  as  the  record 
shows  that  the  grantees  have  never  built  a  fence  around  the 
premises.  During  this  period  of  forty-five  years  there  has 
apparently  been  no  demand  made,  either  by  the  grantor  or 
his  heirs,  for  the  erection  of  a  fence.  During  this  period  the 
grantor  and  his  heirs  have  silently  permitted  interments  to  be 
made,  and  monuments  to  be  erected,  until  this  tract  was  filled 
with  graves.  ...  If  the  clause  in  question  were  to  be  con- 
strued as  creating  a  condition  subsequent,  we  think  upon  these 
facts  the  plaintiffs  may  be  justly  held  either  to  have  waived 
their  right,  or  to  have  lost  it  by  their  own  laches."  And  see 
Kenner  v.  American  Contract  Co.,  9  Bush.  (Ky.),  202;  Grigg 
v.  Landis,  21  N\  J.  Eq.  449;  Barrie  v.  Smith,  47  Mich.  130 
(10  N".  W.  168). 

It  is  said,  however,  in  Gray  v.  Blanchard,  8  Pick.  (Mass.) 
290,  that  "a  mere  indulgence  is  never  to  be  construed  into  a 
waiver  of  a  breach  of  condition."  And  in  Royal  v.  The  Ault- 
man  Taylor  Co.,  116  Ind.  424  (2  L.  E.  A.  526),  the  law  is 
thus  stated :  "While  a  condition  may  be  waived  by  the  party 
who  has  a  right  to  avail  himself  of  it,  mere  indulgence,  or 
silent  acquiescence  in  the  failure  to  perform,  is  never  con- 
strued into  a  waiver  unless  some  element  of  estoppel  can  be 

from  a  condition  not  to  sublet,  on  the  ground  that  in  the  former 
case  the  condition  i°-  single,  and  capable  of  but  one  breach,  where- 
as in  the  latter  it  is  continuous.  See  Conger  v.  Duryee,  90  N.  Y. 
594,  599;  McGlynn  v.  Moore,  25  Cal.  384,  395.  For  discussion  of 
this  subject,  see  p.  428,  infra,  note. 

On  the  whole  subject  of  waiver  of  continuous  and  non-con- 
tinuous conditions,  see  (in  addition  to  the  above  cases)  Doe  v. 
Woodbridge,  9  B.  &  C.  376 ;  Doe  v.  Pritchard,  9  B.  &  Ad.  765 ;  Doe 
v.  Rees,  4  Bing.  N.  C.  384;  Doe  v.  Gladwin,  6  Ad.  &  E.  953;  Doe 
v.  Jones,  5  Exch.  498;  Jackson  v.  Allen,  3  Cow.  (N.  Y.)  220; 
Crocker  v.  Old  South  Society,  106  Mass.  489;  Alexander  v.  Hodges, 
41  Mich.  692  (3  N.  W.  187).  And  see  1  Tayl.  L.  &  T.  §  287;  2  Id, 
§§  500,  501;  1  Washb.  Real  Prop.  (323) ;  1  Sm.  Lead.  Cas.  104,  114. 


430  REAL    PROPERTY.  [Chap.  13 

invoked."  And  see  to  the  same  effect  McKildoe  v.  Darracott; 
13  Gratt.  278,  282;  note  to  Cross  v.  Carson  (Ind.),  44  Am. 
Dec.  246;  6  Am.  &  Eng.  Ency.  Law  (2d  ed.),  508,  and  note; 
Perry  v.  Davis,  3  C.  B.  (N.  S.),  769.  While  this  may  be  true 
of  "mere  indulgence"  foi  a  time  short  of  the  time  prescribed 
as  a  bar  to  an  entry  by  the  statute  of  limitations  (see  in  Vir- 
ginia Code,  §  2915),  yet  it  is  believed  that  the  case  would  be 
rare  in  which  a  failure  to  exercise  the  right  to  enforce  for- 
feiture for  a  considerable  period  would  not  be  accompanied  by 
such  conduct  on  the  part  of  the  grantor  on  condition  (at 
least  when  the  grantee  is  in  possession)  as  to  bring  him  within 
the  operation  of  the  doctrine  of  laches  and  estoppel,  and  so 
amount  to  a  waiver  of  the  breach.  See  Jones  v.  McLain,  16 
Texas  Civ.  App.  305  (41  S.  W.  714). 

§  284.  Discharge  of  Condition  Subsequent — Doctrine  of 
Dumpor's  Case. — Under  discharge  of  a  condition  subsequent 
must  be  considered  the  modes  in  which  an  estate  on  such  con- 
dition may  become  absolute  and  unconditional,  the  condition 
itself  being  forever  extinguished  and  destroyed.  This  may 
occur  by  waiver  after  breach  (as  has  been  stated  in  note  on 
page  410,  supra),  when  the  condition  imposes  a  single  obliga- 
tion, whose  breach  cannot  be  continuing  or  recurrent.  In  this 
case  the  condition  itself  is  discharged  by  the  lessor's  waiver; 
though  it  is  otherwise  when  the  condition  is  continuous.  Or 
a  condition  may  be  discharged  before  breach,  and  this  either 
by  the  intention  of  the  parties,  or  by  conduct  of  the  grantor 
which  the  law  pronounces  an  extinguishment  of  the  condition, 
though  no  such  result  was  intended.1 

1  Destruction  of  a  Possibility  of  Reverter  by  Attempted  As- 
signment.— Where  it  is  held  that  a  mere  possibility  of  reverter 
is  non-assignable  by  the  grantor  (as  to  which  see  §  275,  supra), 
the  doctrine  is  that  if  the  grantor  attempts  to  alien  it  he  thereby 
destroys  it.  As  is  said  in  Rice  v.  Boston,  dc,  R.  Co.,  12  Allen 
(Mass.)  141,  143:  "The  original  maker  of  the  condition  cannot 
enforce  it  after  he  has  parted  with  his  right  of  reverter;  nor  can 
his  alienee  take  advantage  of  a  breach,  because  the  right  was  not 
assignable."    And  in  this  case  it  was  held  that  the  doctrine  was 


§§283,284]  ESTATES    ON    CONDITION.  431 

Under  the  first  head — condition  extinguished  by  intention 
— comes  the  performance  of  a  condition,  as  when  an  affirma- 
tive condition  is  duly  satisfied  by  the  payment  of  money  or 
the  doing  of  some  collateral  act.  So  a  negative  condition  may 
cease  to  be  operative  by  the  grantee's  refraining  from  doing 
the  forbidden  act  during  the  period  prescribed.   The  effect  of 

not  affected  by  the  fact  that  the  attempted  alienation  was  to  the 
son  of  the  grantor,  who  upon  his  death  became  his  heir,  and 
then  brought  an  action  to  enforce  a  forfeiture  for  a  breach  oc- 
curring after  his  father's  death.  It  was  held  that  the  son  could 
not  recover:  "not  as  heir  because  he  did  not  inherit  that  which 
his  father  had  conveyed  in  his  lifetime;  nor  as  a  purchaser  be- 
cause his  deed  was  void." 

This  harsh  doctrine  by  which  a  deed  which  is  void,  and  con- 
veys nothing  to  the  assignee,  operates,  nevertheless,  to  extin- 
guish the  right  of  the  grantor — an  attempted  assignment  enur- 
ing to  the  benefit  of  the  grantee  on  condition,  whose  estate  thus 
becomes  absolute— is  well  sustained  by  authority.  See  1  Shepp. 
Touch.  158;  2  Washb.  Real  Prop.  19;  note  to  Cross  v.  Carson 
(Ind.)  44  Am.  Dec.  747;  Underhill  v.  Saratoga,  &c,  R.  Co.,  20 
Barb.  (N.  Y.)  455;  Hooper  v.  Cummings,  45  Me.  359;  Stearns  v. 
Harris,  8  Allen  (Mass.)  597;  Merritt  v.  Harris,  102  Mass.  326. 
Like  the  rule  in  Dumpor's  Case  (§  284,  above),  the  doctrine  was 
doubtless  due  to  the  law's  abhorrence  of  forfeitures,  and  conse- 
quent readiness  to  seize  on  any  pretext  to  prevent  them.  In  Rice 
v.  Boston,  d-c.,  R.  Co.,  supra,  the  doctrine  is  defended  on  the 
grounds  of  estoppel  and  public  policy. 

In  Upington  v.  Corrigan,  151  N.  Y.  143,  where  an  attempted 
devise  was  made  of  a  possibility  of  reverter  to  a  third  person 
(as  to  which  see  §  276,  supra),  it  was  nevertheless  hgld,  that  the 
heir-at-law  could  enforce  a  forfeiture  for  breach  of  the  condi- 
tion. The  objection  that  the  attempted  devise  of  the  possibility 
of  reverter  had  destroyed  it  was  not  raised;  and  the  case  is  no 
doubt  distinguishable  from  Rice  v.  Boston,  dc,  R.  Co.,  supra,  on 
the  ground  that  there  the  deed  of  the  father,  though  inoperative 
to  convey  the  possibility  of  reverter,  had  extinguished  it  in  the 
father's  lifetime,  leaving  nothing  to  descend  to  his  heir;  whereas 
in  Upingtcm  v.  Corrigan  the  attempted  alienation  by  devise,  hav- 
ing no  effect  whatever  in  the  grantor's  lifetime,  did  not  operate 
to  cut  off  the  devolution  of  the  possibility  of  reverter  to  the  heir, 
which  took  place  at  least  eo  instanti  with  the  abortive  attempt 
to  devise.    It  is  possible  also  that  the  considerations  of  public 


432  REAL    PROPERTY.  [Chap.  13 

such  performance  is  thus  stated  by  Blackstone  (2  Com.  110)  : 
"When  any  condition  is  performed,  it  is  thenceforth  entirely 
gone;  and  the  thing  to  which  it  was  before  annexed  becomes 
absolute  and  wholly  unconditional."  See  2  Tho.  Co.  (60),  n. 
(0.  1) ;  note  to  Cross  v.  Carson  (Ind.),  44  Am.  Dec.  748. 
Under  this  head  also  comes  release  of  a  condition.  Of  this  it 
is  said  in  1  Sheppard's  Touchstone  (158)  :  "If  the  feoffor  or 
lessor  release  to  the  feoffee  or  lessee  all  conditions,  or  all  de- 
mands in  the  land,  or  confirm  the  estate  of  the  feoffee  without 
condition,  etc.,  by  either  of  these  means  the  condition  is  de- 
stroyed and  gone  forever."  See  as  to  release  of  a  condition, 
Brattle  Square  Church  v.  Grant,  3  Gray  (Mass.),  142,  148; 
Jewell  v.  Lee,  14  Allen  (Mass.)  145  (92  Am.  Dec.  744) ;  note 
to  Cross  v.  Carson  (Ind.),  44  Am.  Dec.  746;  and  p.  370, 
supra,  note.  As  to  who  is  entitled  to  release  a  condition,  see 
Tanner  v.  Bibber,  2  Duvall  (Ivy.),  550;  Hopkins  v.  Smith, 
162  Mass.  444;  Safe  Deposit,  &c,  Co.  v.  Flaherty,  91  Md. 
489  (46  Atl.  1009). 

Under  the  second  head — condition  discharged  by  the  con- 
duct of  the  grantor,  irrespective  of  his  intention — comes  the 
doctrine  of  Dumpor's  Case,  4  Co.  119,  decided  in  the  King's 
Bench  in  1603.  It  was  there  resolved  that  if  the  lessor  of 
land,  on  condition  subsequent  that  he  may  re-enter  if  the 
lessee  or  his  assigns  shall  assign  the  term  without  the  license 
of  the  lessor,  once  gives  such  license  to  the  lessee,  who  assigns 
accordingly,  the  condition  is  thereby  discharged;  and  the 
assignee  takes  the  term  absolute  and  unconditioned,  so  that 
such  assignee,  or  any  subsequent  assignee,  may  assign  it  with- 
out license,  just  as  if  no  condition  to  the  contrary  had  ever 
been  imposed.  In  Dumpor's  Case  the  license  to  the  lessee  was 
to  assign  to  anybody  he  pleased   ("to  any  person  or  persons 

policy  and  of  estoppel,  which  are  dwelt  on  in  Rice  v.  Boston,  d-c, 
R.  Co.,  are  not  applicable  to  a  devise  of  a  possibility  of  reverter, 
so  as  to  deprive  a  grantor,  whose  will  is  inoperative  as  to  such 
possibility,  of  the  privilege  of  transmitting  it  to  his  heir  at  law. 
For  the  destruction  of  a  condition  subsequent  by  an  attempted 
apportionment,  see  p.  420,  infra,  note. 


§  284]  ESTATES    ON    CONDITION.  433 

quibuscunque") ;  but  in  Brummell  v.  McPherson,  14  Yes.  173 
(decided  in  1807),  Lord  Eldon  applied  the  doctrine  of  Dum- 
por's  Case,  and  denied  the  lessor's  right  of  re-entry  when  the 
assignee  had  assigned  without  license,  although  the  lessor's 
license  to  the  lessee  was  to  assign  to  the  assignee  only,  and 
not  to  whomsoever  the  lessee  pleased.1 

1  Facts  in  Dumpoe's  Case — Who  are  Assigns. — In  4  Co.  119,  the 
facts  in  Bumpofs  Case  are  thus  stated:  "In  trespass  between 
Dumpor  and  Symms,  upon  the  general  issue,  the  jurors  gave  a 
special  verdict  to  this  effect:  The  President  and  Scholars  of  the 
College  of  Corpus  Christi  in  Oxford,  made  a  least  for  [30]  years, 
anno  10  Eliz.,  of  the  land  now  in  question  to  one  Bolde,  proviso 
that  the  lessee  or  his  assigns  should  not  alien  the  premises  to  any 
person  or  persons,  without  the  special  license  of  the  lessors.  And 
afterwards  the  lessors  by  their  deed,  anno  13  Eliz.,  licensed  the 
lessee  to  alien  or  demise  the  land,  or  any  part  of  it,  to  any  person 
or  persons  quibuscunque.  And  afterwards,  anno  15  Eliz.,  the 
lessee  assigned  the  term  to  one  Tubbe,  who  by  his  last  will  de- 
vised [bequeathed]  it  to  his  son,  and  by  the  same  will  made  his 
son  executor,  and  died.  The  son  entered  generally,  and  the  testa- 
tor was  not  indebted  to  any  person,  and  afterwards  the  son  died 
intestate,  and  the  ordinary  committed  administration  to  one  who 
assigned  the  term  to  the  defendant  [Symms].  The  President  and 
Scholars,  by  warrant  of  attorney,  entered  for  condition  broken, 
and  made  a  lease  to  the  plaintiff  [Dumpor]  for  21  years,  who 
entered  upon  the  defendant,  who  re-entered,  upon  which  re-entry 
this  action  of  trespass  was  brought." 

From  the  above  statement,  it  will  be  seen  that  there  were  in 
all  four  assignments,  viz.  (1)  that  by  Bolde  to  Tubbe,  under  the 
lessors'  license,  (2)  that  by  Tubbe  to  his  son  by  bequest,  (3)  that 
on  the  son's  death  to  his  administrator,  and  (4)  that  by  the  ad- 
ministrator to  Symms,  the  defendant.  The  case  turned  on  the 
validity  of  the  second  assignment  by  Tubbe  to  his  son  by  bequest, 
which  it  was  assumed  would  have  been  in  violation  of  the  con- 
dition had  not  the  condition  been  discharged  already  by  the  li- 
cense to  Bolde.  As  for  the  subsequent  assignments,  (3)  and  (4) 
above,  they  were  not  in  violation  of  the  condition,  the  word  "as- 
signs" not  extending  to  such  cases;  but  of  course  the  title  of 
Symms  depended  on  the  right  of  Tubbe  to  bequeath  to  his  son, 
that  bequest  being  a  link  in  Symms's  chain  of  title. 

That  an  assignment  by  operation  of  law  is  not  within  the  re- 

28 


434  REAL    PROPERTY.  [Chap.  13 

The  question  in  Dumpor's  Case  is  stated  in  Cro.  Eliz.  815 
(where  the  case  is  reported  under  the  name  of  Dumper  v. 
Syms)  as  follows :  "Whether  this  license  to  the  first  lessee  to 
alien  (who  aliened  accordingly)  be  a  dispensation  only  [i.  e., 
pro  hoc  vice'],  or  a  total  determination  of  the  condition.  And 
as  to  that  point  Gawdy,  Clinch,  and  Popham  delivered  their 
opinion  severally  that  the  condition  was  gone  and  discharged 
by  the  dispensation  to  alien  [given]  to  the  lessee  himself;  for 
the  condition,  being  once  dispensed  with,  it  is  utterly  deter- 

straint  of  a  condition  not  to  assign  (unless  made  so  expressly)  is 
well  settled.  This  applies  to  the  transfer  of  the  lease  by  law  to 
the  administrator  of  Tubbe's  son  (under  (3)  supra);  and  when 
an  administrator  thus  receives  a  term,  he  is  entitled  to  dispose 
of  it  as  an  asset  of  the  estate  (this  under  (4)  supra).  See  1 
Taylor,  L.  &  T.  §  408;  2  Id.  §  427;  18  Am.  &  Eng.  Ency.  Law,  661; 
Seers  v.  Hind,  1  Ves.  Jr.  294.  The  only  unlicensed  assignment, 
then,  embraced  by  the  terms  of  the  condition  in  restraint,  was 
the  bequest  by  Tubbe  to  his  son,  who,  it  seems,  was  considered 
to  enter  as  legatee  (there  being  no  debts)  and  not  as  executor. 
See  as  to  this  the  report  of  Dumpor's  Case  in  Cro.  Eliz.  816. 

That  a  bequest  was  forbidden  by  a  condition  in  a  lease  against 
assignment  had  been  expressly  held  in  Berry  v.  Taunton,  Cro. 
Eliz.  331,  decided  in  the  King's  Bench  in  36  Eliz.,  only  a  few 
years  before  the  decision  in  Dumpor's  Case  by  the  same  court. 
And  this  view  of  a  bequest  is  taken  in  7  Am.  Law  Review,  620, 
note.  On  the  other  hand  in  1  Taylor,  L.  &  T.  §  408,  it  is  said: 
"It  would  seem,  also,  that  a  devise  [bequest]  of  a  term  by  the 
lessee,  is  not  a  breach  of  the  covenant  not  to  assign,  although  the 
earlier  cases  hold  the  contrary."  And  see  18  Am.  &  Eng.  Ency. 
Law,  662.  It  is  believed,  however  in  spite  of  the  dicta  to  the  con- 
trary in  the  cases  cited  by  Taylor — Crusoe  v.  Bugby,  3  Wilson, 
237,  and  Doe  v.  Bevan,  3  M.  &  S.  358 — that  the  better  doctrine  is 
that  a  bequest  of  a  term  is  such  an  assignment  as  the  condition 
restrains.  Certainly  this  was  the  law  of  England  when  Dumpor's 
Case  was  decided.  If  it  had  not  been,  then  the  great  question  of 
discharge  of  the  condition  by  the  license  to  the  lessee  would  not 
have  arisen  in  that  case;  for  none  of  the  assignments  after  that 
with  license  would  have  been  embraced  by  the  condition^  in  the 
lease  not  to  alien  (assign),  and  there  would  have  been  no  need 
to  consider  the  discharge  of  a  condition  of  which,  if  in  existence, 
there  had  been  no  breach. 


§284]  ESTATES    ON    CONDITION.  435 

mined.  Eor  it  cannot  be  discharged  for  a  time,  and  be  in  esse 
again  afterwards."1 

In  4  Co.  120,  the  reasons  for  the  discharge  of  the  condition 
by  the  license  to  the  lessee  are  thus  stated:  "And  although 
the  proviso  be  that  the  lessee  or  his  assigns  shall  not  alien, 
yet  when  the  lessors  license  the  lessee  to  alien,  they  shall  never 
defeat  by  force  of  the  said  proviso  the  term  which  is  abso- 
lutely aliened  by  their  license,  inasmuch  as  the  assignee  has 
the  same  term  which  was  assigned  by  their  assent;  so  that 
if  the  lessors  dispense  with  one  alienation,  they  thereby  dis- 
pense with  all  alienations  after;  for  inasmuch  as  by  force  of 
the  lessors'  license,  and  the  lessee's  assignment,  the  estate  and 

1  Does  the  Doctrine  of  Dumpor's  Case  Extend  to  a  Condition 
Restraining  Sub-Letting  Without  License. — In  Dumpor's  Case, 
the  condition  was  not  to  "alien"  without  license,  and  this  was 
taken  to  refer  to  an  assignment  of  the  whole  term.  But  it  would 
seem  that  the  reasoning  of  the  court  is  equally  applicable  to  a 
condition  restraining  sub-letting  without  license  if  the  lessor  li- 
censes one  sub-lease.  It  has  been  suggested,  however,  that  a  dis- 
tinction should  be  made  between  an  assignment  and  a  sub-lease, 
on  the  ground  that  a  sub-lease  is  susceptible  of  more  than  one 
breach,  while  an  assignment  is  not.  See  Woodfall  L.  &  T.  (10th 
ed.)  550,  cited  in  7  Am.  Law  Review  633;  1  Sm.  L.  C.  104. 

But  it  is  believed  that  this  distinction  is  without  foundation, 
and  that  the  rule  in  Dumpor's  Case  is,  on  principle,  as  much  ap- 
plicable— the  license  being  construed  as  a  discharge  of  the  con- 
dition— to  a  second  sub-lease  as  to  a  second  assignment.  It  is 
only  when  continuing  breaches  are  possible  that  there  is  any 
room  for  the  operation  of  the  rule  in  Dumpor's  Case;  and  on  p. 
428,  infra,  note,  it  is  shown  that  a  condition  restraining  assign- 
ment is  continuous,  i.  e.,  it  is  capable  of  recurrent  breaches.  If 
this  be  so,  then  as  there  is  no  difference  in  this  respect  between 
an  assignment  and  a  sub-lease,  the  rule  in  Dumpor's  Case  seems 
equally  applicable  to  both.  See  1  Taylor  L.  &  T.  §  286,  note,  where 
it  is  said  of  the  doctrine  of  Dumpor's  Case:  "It  makes  no  differ- 
ence whether  the  condition  relates  to  a  single  or  continuous 
duty.  A  license  for  one  breach  in  the  manner  contemplated  by 
the  lease  will  discharge  the  whole  condition."  But  that  a  mere 
implied  waiver  does  not  have  this  effect,  either  as  to  an  assign- 
ment or  a  sub-lease,  see  p.  428,  infra,  note. 


436  REAL    PROPERTY.  [Chap.  13 

interest  of  Tubbe  [the  assignee]  was  absolute,  it  is  not  pos- 
sible that  his  assignee,  who  has  his  estate  and  interest,  shall 
be  subject  to  the  first  condition;  and  as  the  dispensation  of 
one  alienation  is  the  dispensation  of  all  others,  so  it  is  as  to 
the  persons,  for  if  the  lessors  dispense  with  one,  all  others  are 
at  liberty." 

From  the  above  reasons,  taken  from  the  two  reports  of 
Dumpor's  Case,  it  is  manifest  that  the  decision  proceeded  on 
the  ground  of  the  entirety  of  a  condition,  both  as  to  time  and 
persons,  in  the  sense  that  it  must  have  uninterrupted  opera- 
tion, any  impairment  of  its  integrity  by  licensed  dispensation 
being  fatal  to  its  existence.  Thus  in  Croke  it  is  said :  "It  can- 
not be  discharged  [i.  e.,  dispensed  with]  for  a  time,  and  be 
in  esse  again  afterwards."  And  Coke  says :  "So  it  is  as  to  the 
persons;  for  if  the  lessors  dispense  with  one  [i.  e.,  allow  the 
lessee  to  assign]  all  others  are  at  liberty."  And  he  insists 
that  if,  by  the  lessors'  license  to  the  lessee  to  assign,  the  term 
once  becomes  free  from  the  condition,  it  must  forever  remain 
so,  and  that  the  condition  can  never  again  attach  to  the  term, 
into  whosesoever  hands  it  may  come.  And  in  both  reports, 
precedents  are  relied  on  which  declare  that  a  condition  subse- 
quent is  indivisible  and  incapable  of  apportionment,  as  if  this 
doctrine  tended  to  sustain  the  decision  of  the  court.1 

1  Non-Apportionment  of  a  Condition  Subsequent  by  Act  of  the 
Parties. — In  1  Sheppard's  Touchstone  159,  the  law  is  thus  laid 
down:  "If  a  lease  be  made  for  years  on  condition  that  the  lessee 
or  his  assigns  shall  not  alien  without  the  license  of  the  lessor, 
and  the  lessor  license  the  lessee  alone  to  alien,  or  license  him  to 
alien  a  part  of  the  land,  or  license  him  to  alien  all  the  land  for 
a  time;  or  if  the  lease  be  to  three  on  such  a  condition,  and  the 
lessor  license  one  of  them  to  alien,  in  all  these  cases  the  condi- 
tion is  gone  forever."  And  Preston's  annotation  is:  "For  a  con- 
dition once  dispensed  with,  in  the  whole  or  in  part,  is  dispensed 
with  forever,  and  as  to  all  the  land;  for  a  condition  is  entire, 
and  cannot  be  apportioned  except  by  act  of  law."  See  Dumpor's 
Case,  4  Co.  119,  citing  Leeds  v.  Crompton,  1  Rolle,  Abr.,  472. 

The  above  statement  refers  to  the  effect  on  a  condition  of  any 
indulgence  accorded  to  the  lessee,  even  if,  as  in  the  first  case  put 


§284]  ESTATES    ON    CONDITION.  437 

The  resolution  in  Dumpor's  Case  may  therefore  be  said  to 
rest  on  two  foundations,  viz.,  (1)  the  doctrine  of  the  entirety 
of  a  condition,  and  (2)  the  doctrine  of  its  non-susceptibility 
to  apportionment.  But  it  is  manifest  that  where,  as  in  Dum- 
por's Case,  the  condition  is  only  not  to  assign  without  license, 

(which  is  but  the  doctrine  of  Dumpor's  Case),  it  is  not  an  in- 
dulgence contrary  to  the  condition,  but  in  pursuance  of  an  excep- 
tion which  constitutes  part  of  it.  But  the  rule  of  non-apportion- 
ment applies  also  as  to  the  reversion  of  the  lessor,  and  forbids 
him  to  alter  the  entirety  of  the  condition  on  pain  of  destroying 
it.  Thus  Lord  Coke  says:  "A  grantee  of  part  of  the  reversion 
shall  not  take  advantage  of  the  condition.  As  if  the  lease  be  of 
three  acres,  reserving  a  rent,  on  condition,  and  the  reversion  is 
granted  of  two  acres,  the  rent  shall  be  apportioned  by  act  of  the 
parties,  but  the  condition  is  destroyed,  for  that  it  is  entire,  and 
against  common  right."  2  Tho.  Co.  90.  This  is  the  doctrine  of 
the  common  law,  and  it  was  not  changed  by  the  Statute  of  32 
Hen.  8,  c.  34,  §  1  (as  to  which  see  §  275,  supra).  See  Winter's 
Case,  Dyer,  308;  Knight's  Case,  5  Co.  55;  Twynam  v.  Pickard,  2 
B.  &  Aid.  105,  110. 

In  accord  with  the  law  as  above  laid  down  in  the  Touchstone 
and  by  Lord  Coke — that  a  condition  is  entire  and  indivisible,  and 
that  there  can  be  no  apportionment,  except  by  act  of  law,  as  to 
either  the  reversion  or  the  term  demised — see  Van  Rennselaer  v. 
Jewett,  5  Denio  (N.  Y.)  121,  126;  Williams  v.  Dakin,  22  Wend. 
(N.  Y.)  201  (affirming  Dakin  v.  Williams,  17  Wend.  447);  Sharon 
Iron  Works  v.  City  of  Erie,  41  Pa.  St.  341;  Clark  v.  Martin,  49 
Pa.  St.  289.  And  see  1  Smith,  Lead  Cas.  105,  128;  1  Taylor,  L.  & 
T.  §  286,  note,  §  296,  §  410,  note;  1  Washb.  Real  Prop.  503,  507; 
2  Id.  21. 

As  to  the  exception  noted  above,  that  a  condition  may  be  ap- 
portioned by  act  of  law  (to  which  may  be  added  for  the  wrong 
of  the  lessee),  the  doctrine  is  thus  laid  down  in  Dumpor's  Case, 
4  Co.  120:  "But  it  was  agreed  that  a  condition  may  be  appor- 
tioned in  two  cases:  (1)  by  act  in  law,  and  (2)  by  act  and  wrong 
of  the  lessee.  1.  By  act  in  law,  as  if  a  man  seised  of  two  acres, 
the  one  in  fee  and  the  other  in  borough-English,  has  issue  two 
sons,  and  leases  both  acres  for  life  or  years,  rendering  rent,  with 
condition,  and  the  lessor  dies:  in  this  case  by  this  descent,  which 
is  an  act  in  the  law,  the  reversion,  rent,  and  condition  are  di- 
vided. 2.  By  act  and  wrong  of  the  lessee,  as  if  the  lessee  make  a 
[tortious]   feoffment  of  part,  or  commits  waste  in  part,  and  the 


438  REAL    PROPERTY.  [Chap.  13 

to  assign  ivith  license  does  not  dispense  with  the  condition; 
but,  in  pursuing  the  exception,  preserves  its  integrity;  and, 
further,  that  the  doctrine  of  non-apportionment  is  misapplied, 
as  this  has  reference  to  a  severance  of  ownership  of  the  rever- 
sion, or  to  a  discharge  of  part  of  the  estate  demised.1   In  the 

lessee  enters  for  the  forfeiture,  or  recovers  the  place  wasted,  then 
the  rent  and  condition  shall  be  apportioned,  for  none  shall  take 
advantage  of  his  own  wrong,  and  the  lessor  shall  not  be  preju- 
diced by  the  wrong  of  the  lessee."  See  2  Tho.  Co.  90;  1  Shepp. 
Touch.  157.  And  see  7  Am.  Law  Review  623,  where  the  doctrine 
of  apportionment  by  act  of  law  is  said  to  extend  to  the  assignee 
in  bankruptcy,  or  levying  creditor,  of  the  grantor  on  condition 
subsequent. 

It  should  be  noted  that  the  doctrine  of  non-apportionment  of 
conditions  by  act  of  the  parties  does  not  extend  to  covenants.  See 
Twynam  v.  Pickard,  2  B.  &  Aid.  105;  1  Tayl.  L.  &  T.  §  410,  n.  3. 

In  England  the  doctrine  of  non-apportionment  of  conditions  by 
act  of  the  parties  has  been  changed  by  statutes,  both  as  to  the 
effect  of  a  license  granting  indulgence  to  a  lessee,  and  also  as  to 
the  effect  of  a  severance  of  the  reversion.  As  to  the  former,  by 
22  &  23  Vict.  c.  35,  §  2,  a  license  to  one  of  several  lessees  to  do  an 
act  forbidden  without  license  enures  to  the  benefit  of  such  lessee 
only,  and  does  not  destroy  the  condition,  which  remain  operative 
as  to  the  other  lessees;  and  a  license  as  to  part  only  of  the  leased 
property,  is  no  dispensation  as  to  the  residue.  As  to  a  severance 
of  the  reversion  the  Conveyancing  Act  of  1881  (44  &  45  Vict., 
c.  41,  §  12)  provides  that  "every  condition  or  right  of  re-entry 
and  every  other  condition  contained  in  leases  made  after  1881, 
shall,  on  the  severance  of  the  reversionary  interest  in  the  land 
leased,  be  apportioned,  and  remain  annexed  to  the  several  parts 
of  the  reversionary  estate  as  severed."  See  1  Smith,  Lead.  Cas. 
96;  Williams,  Real  Prop.  572. 

1  Non-Apportionment  of  Conditions  no  Foundation  for  the 
Rule  in  Dumpor's  Case. — For  an  examination  of  the  doctrine  of 
non-apportionment  of  conditions,  see  an  able  article  entitled 
"Dumpor's  Case,"  7  Am.  Law  Review  616  (July,  1873),  understood 
to  be  from  the  pen  of  Joseph  Willard,  Esq.,  of  Boston.  The  con- 
clusion reached  by  the  learned  writer  as  to  Dumpor's  Case  is 
that  it  was  "originally  without  foundation  in  the  law  of  condi- 
tions," and  that  to  repudiate  it  would  "relieve  the  law  of  to-day 
of  an  incubus,  and  bring  our  system  of  real  property  into  harmony 


§  284]  ESTATES    ON    CONDITION.  439 

language  of  Williams  (Real  Prop.  570)  :  "The  ground  of  this 
doctrine  [that  laid  down  in  Dumpor's  Case]  was  that  every 
condition  of  re-entry  was  entire  and  indivisible;  and  as  the 
condition  had  been  waived  [licensed]  once,  it  could  not  be  en- 
forced again  .  .  .  ;  but  its  application  to  a  license  to  per- 
form an  act  which  was  only  prohibited  when  done  ivitliout  li- 
cense, was  not  very  apparent."1 

with  common  sense."  And  as  to  the  doctrine  of  non-apportion- 
ment, he  declares:  ''It  affords  no  foundation  for  the  rule  in 
Dumpor's  Case.  The  analogy  attempted  between  these  cases  of 
destruction  of  the  condition  either  by  severance  of  the  reversion, 
or  discharge  of  part  of  the  demised  premises,  and  the  rule  there 
applied,  wholly  fails.  In  these  cases,  the  lessor,  re-entering,  can- 
not be  in  of  his  old  estate  [as  to  this,  see  p.  382,  supra,  note] ;  if 
he  should,  he  would  in  the  latter  instance  destroy  his  prior  grant 
to  the  lessee,  and  in  the  former  to  the  other  parcel  reversioner. 
But  no  such  bar  existed  to  the  re-entry  of  the  lessor  upon  the  as- 
signee [a  second  assignee,  or  any  more  remote  assignee  after 
mesne  assignments]  in  Dumpor's  Case.  The  lessor  so  entering 
is  in  of  his  old  estate,  and  all  of  it,  and  defeats  no  estate  previ- 
ously exempted  from  the  operation  of  that  entry-  The  license 
given  relieved  the  estate  of  the  lessee;  but  by  the  same  act  [i.  e., 
by  the  lessee's  assignment  under  the  license]  that  estate  [the 
lessee's]  terminated,  and  the  assignee's  commenced,  to  which  the 
license  had  no  application."  That  is  to  say,  no  application  so  as 
to  authorize  such  first  assignee  to  assign  over  to  a  second,  as  was 
done  and  allowed  in  Dumpor's  Case;  and  if,  contrary  to  the  de- 
cision in  that  case,  the  lessors  had  been  allowed  to  enter  on  the 
second,  or  any  subsequent  assignee,  it  would  not  have  been  in 
derogation  of  the  license  to  assign  given  by  the  lessors  to  the 
lessee. 

1  Condition  not  to  Assign,  Simpliciter,  not  Saying  "Without 
License." — It  will  be  remembered  that  in  Dumpor's  Case  the  con- 
dition in  restraint  of  assignment  by  the  lessee  or  his  assigns 
contained  the  express  exception  "without  the  special  license  of 
the  lessors.''  But  if  the  words  italicized  had  been  omitted,  and 
the  lessors  had  given  an  express  license  to  assign,  it  would  seem 
that  the  doctrine  of  that  case  would  have  been  still  applicable, 
and  this  a  fortiori.  For  then  the  license  granted  would  not  have 
been  in  pursuance  of  the  condition,  but  in  derogation  of  it,  and 
so  might  well  be  said  to  impair  its  entirety  (or  integrity). 


440  REAL    PROPERTY.  [Chap.  13 

In  Brummell  v.  McPherson,  14  Ves.  172,  Lord  Eldon  (as 
has  been  stated  on  page  416,  supra)  followed  the  doctrine  of 
Dumpor's  Case,  saying:  "Though  Dumpor's  Case  always 
struck  me  as  extraordinary,  it  is  the  law  of  the  land  at  this 
day."  But  although  Lord  Eldon  did  not  feel  at  liberty  to 
depart  from  the  doctrine  of  Dumpor's  Case,  he  thus  expressed 
his  dissatisfaction  with  the  doctrine  laid  down  therein  as  to 
the  effect  of  the  lessors'  license :  "When  a  man  demises  to  A, 
his  executors,  administrators,  or  assigns,  with  an  agreement 
that  if  he,  his  executors,  administrators,  or  assigns,  assign 
without  license,  the  lessor  shall  be  at  liberty  to  re-enter,  it 
would  have  been  perfectly  reasonable  originally  to  say  that  a 
license  [i.  e.,  to  the  lessee]  was  not  a  dispensation  with  the 
condition  [i.  e.,  as  to  assigns],  the  assignee  being,  by  the  very 
terms  of  the  original  contract,  restrained,  as  well  as  the  origi- 
nal lessee."  And  in  Doe  v.  Bliss,  4  Taunt.  735  (decided  in 
1813),  Mansfield,  C.  J.,  says:  "Certainly  the  profession  have 
always  wondered  at  Dumpor's  Case;  but  it  has  been  law  for 
so  many  centuries  that  we  cannot  now  reverse  it." 

While  the  English  judges — because  of  the  respect  due  to 
age — declined  to  overrule  Dumpor's  Case,  its  practical  incon- 
venience to  tenants  was  severely  felt.  For,  as  is  said  by  Wil- 
liams (Real  Prop.  571)  :   "No  landlord  could  venture  to  give 

In  Williams  on  Real  Property,  570,  the  doctrine  of  Dumpor's 
Case  is  so  stated  as  to  include  the  case  just  put,  omitting  the 
words  "without  the  special  license  of  the  lessors,'3  and  it  is  said: 
"So  far  as  this  reason  [viz.,  "every  condition  of  re-entry  is  entire 
and  indivisible"]  extended  to  the  breach  of  any  covenant  [with 
right  of  re-entry,  nothing  being  said  about  license],  it  was  cer- 
tainly intelligible;  but  its  application  to  a  license  to  perform 
an  act  which  was  only  prohibited  when  done  without  license,  was 
not  very  apparent."  The  author  here  recognizes  the  doctrine  of 
Dumpor's  Case  as  applicable  in  both  of  the  cases  under  considera- 
tion, and  as  more  reasonable  when  the  words  "without  license" 
are  omitted,  than  when  they  are  inserted  in  the  condition  as  part 
of  it.  Dumpor's  Case  seem  equally  applicable  whether  the  condi- 
tion in  restraint  of  assignment  does  or  not  contain  the  words 
"without  license."    See  §  284,  above;  also  §  285,  infra. 


§§284,285]  ESTATES    ON    CONDITION.  441 

a  license  to  do  any  act  which  might  be  prohibited  by  the  lease 
unless  done  with  license,  for  fear  of  losing  the  benefit  of  the 
proviso  for  re-entry  in  case  of  any  future  breach  of  cove- 
nant." But  relief  was  at  last  given,  in  1859,  by  Lord  St. 
Leonards'  Act  (22  &  23  Vict.  c.  35,  §§  1,  2),  which  enacts, 
in  substance,  that  after  license  to  do  any  act  which  by  the 
condition  in  a  lease  would  create  a  forfeiture  or  give  a  right 
to  re-enter  if  done  without  license,  such  license  shall  extend 
only  to  the  permission  actually  given;  and  the  condition  or 
right  of  re-entry  shall  be  and  remain  in  all  respects  as  if  such 
license  had  not  been  given,  except  in  respect  of  the  particular 
matter  authorized  to  be  done."  See  Williams,  Real  Prop.  571 ; 
1  Washb.  Real  Prop..  (317) ;  note  to  Dumpor's  Case,  1  Smith 
Lead.  Cas.  95,  96,  where  the  statute  is  set  out  at  length. 

§  285.  Dumpor's  Case  in  the  United  States. — For  a  review 
of  the  American  authorities  up  to  1873,  see  an  article  (re- 
ferred to  in  note  on  page  422,  supra)  entitled  "Dumpor's 
Case,"  7  American  Law  Revieiu,  616.  The  conclusion  reached 
by  the  author  as  to  the  status  of  the  doctrine  of  Dumpor's 
Case  in  the  United  States  is  that  "with  a  single  and  some- 
what doubtful  exception,  there  has  been  no  decision  directly 
in  point,  and  the  rule  has  been  recognized  only  to  be  distin- 
guished." So  in  12  Harvard  Law  Review,  272  (Nov.,  1897), 
it  is  said  in  an  editorial  note  that  "the  extent  to  which  the 
rule  prevails  in  the  United  States  is  uncertain.  Almost  al- 
ways it  is  held  inapplicable."  And  in  the  article  in  7  Am. 
Law  Review,  at  page  634,  it  is  declared:  "In  no  case  has  it 
[the  doctrine  of  Dumpor's  Case]  been  examined  and  approved 
on  its  intrinsic  soundness." 

On  the  other  hand,  it  must  be  observed  that,  so  far  at  least 
as  the  writer's  research  has  extended,  not  only  does  the  rule 
in  Dumpor's  Case  remain  unchanged  by  statute  in  the  United 
States,  but  it  has  never  been  repudiated  by  any  American  de- 
cision. It  is  true  that  the  disparaging  remarks  concerning  it 
of  Lord  Eldon  and  Sir  James  Mansfield  (quoted  in  §  284, 
supra)  are  sometimes  referred  to  by  American  judges;  and, 


442  REAL    PROPERTY.  [Chap.  13 

similar  language  of  disapproval  of  their  own  is  not  wanting, 
as  when  Chancellor  Walworth,  in  Williams  v.  Dabin,  22 
Wend.  (1ST.  Y.),  201,  209,  speaks  of  Dumpor's  Case,  as  "carry- 
ing a  technical  principle  beyond  the  bounds  of  common 
sense."  But  the  rule  itself  is  nowhere  denied  in  the  United 
States,  but  is  recognized  as  having  been  "law  for  so  many 
centuries"  that  it  is  now  the  "law  of  the  land."  See  Bleeder 
v.  Smith,  13  Wend.  (N.  Y.),  530,  533;  Dakin  v.  Williams, 
17  Wend.  447,  457;  Williams  v.  Dakin,  22  Wend.  201,  209; 
Lynde  v.  Hough,  27  Barb.  415,  422;  Murray  v.  Ear-way,  56 
N.  Y.  337;  Gannett  v.  Albree,  103  Mass.  372;  Pennock  v. 
Lyons,  118  Mass.  92;  Dickey  v.  McCullough,  2  W.  &  S.  (Pa.) 
88 ;  Sharon  Iron  Co.  v.  City  of  Erie,  41  Pa.  St.  341 ;  Mc- 
Kildoe  v.  Darracott,  13  Gratt.  (Va.)  278;  Tenn.  &c,  Co.  v. 
Scott,  14  Mo.  46;  Chipman  v.  Emeric,  5  Cal.  49;  Beid  v. 
Weissner,  &c,  Brewing  Co.,  88  Md.  234  (40  Atl.  877).  And 
see  American  note  to  Dumpor's  Case,  1  Sm.  Lead.  Cas.  103; 
note  to  Cross  v.  Carson  (Ind.),  44  Am.  Dec.  748;  1  Washb. 
Eeal  Prop.  (5th  ed.),  503,  and  notes;  2  Id.  21;  1  Taylor,  L. 
&  T.,  §  286;  also  §  410,  and  note  3.1 

1  Does  a  Condition  in  a  Lea.se  Not  to  Assign  Without  License 
Extend  to  the  Lessee's  Assigns  When  they  are  Not  Men- 
tioned.— In  several  of  the  cases  above  cited,  in  which  the  rule 
in  Dumpor's  Case  was  recognized,  the  condition  restraining  as- 
signment did  not  mention  assigns.  On  this  ground  it  is  claimed 
in  7  Am.  Law  Review,  641,  that  as  the  restraint  was  personal  to 
the  lessee,  and  did  not  extend  to  the  assignee,  the  result  would 
have  been  the  same  without  resort  to  the  rule  in  Dumpor's  Case, 
and  hence  the  reliance  on  the  rule  was  unnecessary,  and  obiter 
dictum. 

That  a  condition  not  to  assign  without  license  does  not  extend 
to  assigns  when  they  are  not  mentioned  was  early  held  in  Eng- 
land in  an  anonymous  case  in  Dyer,  66  a,  which  was  followed  in 
Doe  v.  Smith,  5  Taunt.  795.  And  see  Weatherall  v.  Geering,  12 
Ves,  504,  511.  The  same  doctrine  is  laid  down  in  Dougherty  v. 
Matthews,  35  Mo.  520  (88  Am.  Dec.  126).  See  also  7  Am.  Law 
Review  260,  261.  To  the  contrary,  are  the  American  cases  above 
referred  to  (Chipman  v.  Emeric,  5  Cal.  49;  Dickey  v.  McCullough, 
2  W.  &  S.  88;  Lynde  v.  Hough,  27  Barb.  415)   in  which  it  is  as- 


§285]  ESTATES    ON    CONDITION.  443 

Indeed,  not  only  has  the  doctrine  of  Dumpor's  Case  not 
been  repudiated  by  the  American  courts,  but  it  has  sometimes 
been  carried  beyond  the  facts  in  that  case,  and  has  been 
deemed  to  apply  to  a  covenant  as  well  as  to  a  condition  (Reid 
v.  Weissner,  &c,  Brewing  Co.  88  Md.  234,  40  Atl.  887),  and 
even  to  the  implied  waiver  of  the  breach  of  a  condition  from 
the  acceptance  of  rent  (Murray  v.  Harivay,  56  N".  Y.  337). 

That  the  better  doctrine  is  that  the  rule  in  Dumpor's  Case 
does  not  extend  to  a  covenant  not  to  assign,  see  Twynam  v. 
Pickard,  2  B.  &  Aid.  105;  Paul  v.  Nurse,  8  B.  &  C.  486; 
Williams  v.  Dakin,  22  Wend.  201,  209;  Gannett  v.  ATbree, 
103  Mass.  372 ;  1  Smith  L.  C.  103 ;  1  Tayl.  L.  &  T.  §  410,  n. 
3;  7  Am.  Law  Eeview,  634-7;  12  Harv.  Law  Eeview,  273. 

Upon  the  question  whether  the  rule  in  Dumpor's  Case  ex- 

sumed  that  assigns  were  originally  bound  though  not  mentioned, 
but  it  was  held  that  they  were  freed  from  the  restraint  by  the 
operation  of  the  rule  in  Dumpor's  Case. 

On  principle,  as  has  been  stated  in  §  272,  supra,  the  question 
whether  a  condition  extends  to  assigns  when  they  are  not  men- 
tioned should  be  a  question  of  intention,  depending  on  the  con- 
struction of  the  language  of  the  condition.  If  the  language  be 
"the  said  lessee  shall  not  assign,"  not  mentioning  assigns,  this 
might  well  be  held  personal  to  the  lessee.  But  if  it  be,  "the  said 
lease  shall  not  be  assigned,"  this  should,  on  principle,  extend  to 
assigns,  though  they  are  not  mentioned. 

As  to  a  covenant  not  to  assign,  this  has  been  held  "to  run  with 
the  land,"  as  touching  and  concerning  it,  and  so  to  bind  assigns, 
at  least  when  they  are  mentioned.  Williams  v.  Earle,  L.  R.  3  Q.  B. 
739,  749,  per  Blackburn,  J.  And  it  would  seem  from  the  reasoning 
in  this  case  that  the  decision  would  have  been  the  same  if  as- 
signs had  not  been  mentioned,  a  result  which  seems  right  on 
principle.  See  1  Taylor,  L.  &  T.  §  413;  note  to  Geizler  v.  De  Graaf 
(N.  Y.),  82  Am.  St.  Rep.  690;  Reid  v.  Weissner,  rfc,  Brewing  Co., 
88  Md.  234  (40  Atl.  877).   But  see  12  Harv.  Law  Review,  273. 

In  Virginia  by  Code,  §  2445:    "When  a  deed  uses  the  words  'the 

said covenants'  such  covenant  shall  have  the  same  effect  as 

if  it  was  expressed  to  be  by  the  covenantor  for  himself,  his  heirs, 
personal  representatives,  and  assigns,  and  shall  be  deemed  to  be 
with  the  covenantee,  his  heirs,  personal  representatives,  and  as- 
signs." See  §  63,  supra. 


444  REAL    PROPERTY.  [Chap.  13 

tends  to  an  implied  waiver  by  the  acceptance  of  rent  after 
breach  of  a  condition  not  to  assign,  there  is  conflict.  See 
1  Washb.  Eeal  Prop.  503,  where  it  is  said:  "A  mere  waiver 
by  acquiescence,  without  any  actual  license,  as,  for  instance 
by  taking  rent  of  an  assignee,  where  the  original  tenant  had 
been  restrained  from  assigning  by  a  condition  in  his  lease, 
though  it  would  ratify  such  an  assignment,  would  not  extend 
to  future  breaches  of  the  same  kind,  so  as  to  prevent  the 
lessor's  entering  and  defeating  the  demise  for  a  new  assign- 
ment made."  On  the  other  hand,  in  1  Taylor,  L.  &  T.  §  411, 
it  is  said :  "The  acceptance  of  rent  by  a  landlord  after  breach 
of  a  condition  not  to  assign  is  tantamount  to  a  license."  If 
this  be  true,  the  rule  in  Dumpor's  Case  of  course  applies, 
and  the  landlord  who  has  received  rent  from  the  first  assignee 
loses  thereby  not  only  the  right  to  enter  for  the  first  assign- 
ment, but  also  the  right  to  enter  for  a  second.  See  as  to 
these  conflicting  views,  7  Am.  Law  Eeview,  633,  where  the 
above  statement  of  the  law  by  Washburn  is  approved. 

In  Williams  on  Eeal  Prop.  (17th  ed.),  571,  after  stating 
the  change  by  Lord  St.  Leonards'  Act  as  to  the  effect  of  a 
license  (as  to  which  see  §  284,  supra)  it  is  added  "This  Act, 
however,  failed  to  provide  for  the  case  of  actual  waiver  of  a 
breach  of  covenant  [with  right  of  re-entry  therefor].  On  this 
point  the  law  stood  thus.  The  receipt  of  rent  by  a  landlord, 
after  notice  of  a  breach  of  covenant  committed  by  the  tenant 
prior  to  the  rent  becoming  due,  was  an  implied  waiver  of  the 
right  of  re-entry ;  but  if  the  breach  was  of  a  continuing  kind, 
this  implied  waiver  did  not  extend  to  the  breach  which  con- 
tinued [or  recurred]  after  the  receipt.  An  implied  waiver  of 
this  kind  did  not  destroy  the  condition  of  re-entry;  but  an 
actual  waiver  had  this  effect.  Few  landlords,  therefore,  were 
disposed  to  give  an  actual  waiver.  This  inconvenience  was 
met  by  a  subsequent  act  [23  &  24  Vict.  c.  38,  §  6],  provid- 
ing that  in  future  any  actual  waiver  by  the  lessor,  in  any  par- 
ticular instance,  of  the  benefit  of  any  covenant  or  condition 
in  any  lease,  should  not  be  deemed  to  be  a  general  waiver  of 
any  such  covenant  or  condition,  unless  an  intention  to  that 


§  285]  ESTATES    ON    CONDITION.  445 

effect  should  appear."  And  see  1  Smith  Lead.  Cas.  96,  where 
the  act  of  23  &  24  Vict,  supra,  is  set  out  at  length,  and  is 
spoken  of  as  annulling  the  doctrine  of  Dumpor's  Case  when 
there  has  been  an  actual  waiver,  thereby  supplementing  the 
previous  statute  which  had  annulled  it  in  case  of  an  express 
license.1 

1  Is  a  Condition  Not  to  Assign  Without  License  a  Continuous 
Condition. — In  England,  according  to  the  above  statement  of  the 
law  by  Williams,  and  under  the  statutes  referred  to,  the  rule  in 
Dumpor's  Case  can  now  operate,  if  at  all,  only  on  an  implied 
waiver  of  a  condition  not  to  assign  without  license.  Upon  the 
facts  of  Dumpor's  Case,  a  license  is  necessary  to  its  operation; 
but  a  license  is  curtailed  in  its  effect  by  Lord  St.  Leonards'  Act; 
and  the  extension  of  the  doctrine  to  an  actual  waiver,  as  equiva- 
lent to  a  license,  is  annulled  by  the  later  statute.  This  leaves  only 
implied  waiver  to  be  reckoned  with;  and  the  effect  of  this,  ac- 
cording to  Williams,  "if  the  breach  is  of  a  continuing  kind,"  is 
confined  as  a  waiver  to  the  breach  which  occurred  before  the 
receipt  of  the  rent  from  which  the  waiver  is  implied.  As  to  what 
is  meant  by  a  "continuing"  breach,  see  note  on  p.  410,  supra, 
where  it  is  shown  that  such  breach  may  either  be  strictly  continu- 
ing or  only  recurrent.  If,  then,  a  condition  not  to  assign  with- 
out license  can  be  considered  recurrent,  an  implied  waiver  of  the 
first  assignment  should  condone  it  only,  and  should  not  be  held 
to  authorize  the  assignee  to  assign  without  license. 

As  has  been  seen  (p.  410,  supra,  note),  it  is  conceded  that  an 
implied  waiver  by  receipt  of  rent  after  one  sub-lease  will  not 
operate  to  excuse  a  second.  Thus  in  Taylor  L.  &  T.  §  411,  after 
the  statement  (quoted  above)  that  the  acceptance  of  rent  by  a 
landlord  after  a  breach  of  a  condition  not  to  assign  is  tantamount 
to  a  license,  it  is  added:  "But  it  is  otherwise  with  regard  to  a 
condition  not  to  underlet,  for  in  this  case  any  subsequent  under- 
letting will  authorize  the  landlord  to  re-enter."  If,  however,  the 
rule  in  Dumpor's  Case  does  not  apply  to  a  second  sub-lease,  when 
there  is  a  mere  implied  waiver  by  the  acceptance  of  rent  after 
the  first  sub-lease — because,  as  is  said  in  Doe  v.  Bliss,  4  Taunt.  733, 
"this  tolerance  is  not  tantamount  to  a  license" — no  reason  is  per- 
ceived why  acceptance  of  rent  should  have  a  different  effect  in 
the  case  of  a  second  assignment.  For  the  implied  waiver  is  no 
more  "tantamount  to  a  license"  in  the  case  of  assignment  than 
in  the  case  of  a  sub-lease,  and  the  rule  in  Dumpor's  Case  can 
have  no  operation. 


446  REAL    PROPERTY.  [Chap.  13 

It  may  be  added  that  it  has  been  held  in  Missouri  that  the 
doctrine  of  Dumpor's  Case — that  a  condition  once  dispensed 
with  is  gone  forever — it  confined  to  grants  of  land,  and  does 
not  extend  to  personal  contracts.  Thus  a  condition  in  a  policy 
of  insurance  that  the  assured  should  obtain  the  assent  of  the 
company  to  a  change  of  ownership  of  the  insured  property  was 
held  not  to  be  discharged  (but  only  dispensed  with  pro  hac 
vice)  by  the  assent  of  the  company  to  one  change  of  owner- 
ship, and  to  become  again  operative  on  a  subsequent  change 
without  such  assent.  Tenn.  &c.  Co.  v.  Scott,  14  Mo.  46 ;  Eddy 

It  follows,  therefore,  that  if  the  distinction  alleged  by  Taylor 
between  a  sub-lease  and  an  assignment,  as  to  the  effect  of  an  im- 
plied waiver  be  sound  (and  see  McKildoe  v.  Darracott,  13  Gratt. 
278,  286),  it  must  be  because  of  a  difference  in  the  nature  of  the 
two  restraints — the  breach  of  a  sub-lease  being  potentially  con- 
tinuing, and  the  breach  of  an  assignment  not  continuing,  but 
once  for  all. 

It  is  believed,  however,  that  the  true  doctrine  is  that  a  con- 
dition not  to  assign  is  capable  of  a  continuing  (or  recurrent) 
breach,  and  that  on  principle  an  implied  waiver  of  the  first 
breach  does  not  extend  to  a  second.  As  is  well  said  in  7  Am.  Law 
Review  639:  "It  is  true  that  in  some  of  these  cases  the  condition 
against  assigning  has  been  distinguished  as  capable  from  its 
nature  of  one  breach  only.  But  such  a  distinction  is  without 
foundation.  If  the  condition  was  solely  framed  to  bind  the  lessee, 
it  might  be  otherwise,  as  the  condition  with  its  covenant  is  per- 
haps unable  to  run  without  the  mention  of  assigns.  [See  as  to 
this  p.  426,  supra,  note.]  But  where  assigns  are  mentioned,  the 
condition  is  necessarily  continuous,  because  it  applies  in  terms 
to  persons  who  can  only  come  under  its  force  after  one  author- 
ized breach;  and  it  presents  a  stronger  case  than  that  of  a  con- 
dition against  underletting,  because  it  extends  expressly  where 
that  and  similar  conditions  apply  only  by  inference." 

It  is  submitted,  therefore,  that  a  condition  not  to  assign  with- 
out license  is  capable  of  a  recurrent  operation  (or  subsequent 
breach);  and  that  as  an  implied  waiver  of  a  first  breach  is  not 
within  the  rule  in  Dumpor's  Case,  such  waiver  should  not  de- 
stroy the  condition;  and  that  the  contrary  view,  adopted  by  Tay- 
lor and  held  in  Murray  v.  Hartvay,  56  N.  Y.  337,  is  unsound  on 
principle.  But  see  in  accord  with  Murray  v.  Harway,  Conger  v. 
Duryee,  90  N.  Y.  594,  599;  McGlynn  v.  Moore,  25  Cal.  384,  395. 


§285]  ESTATES    ON    CONDITION.  447 

v.  Ins.  Co.  21  Mo.  587;  1  Smith  Lead.  Cas.  104;  7  Am.  Law 
Beview,  634.  But  see  Sharon  Iron  Works  v.  City  of  Erie,  41 
Pa.  St.  341,  352,  where  it  is  said:  "Whether  the  rule  in 
Dumpor's  Case,  as  said  in  two  Missouri  cases,  'under  which 
conditions  once  waived  are  wholly  gone,'  is  restricted  to  grants 
of  lands  and  incorporeal  hereditaments,  and  forms  no  part  of 
the  general  law  of  contracts,  I  shall  not  stop  to  consider,  for 
the  case  before  us  is  that  of  a  condition  annexed  to  a  grant 
of  land  in  fee-simple,  expressly  dispensed  with  and  waived 
by  the  grantors." 


CHAPTER  XIV. 

Dower  and  Curtesy. 

§  286.  Definition  of  Dower.1 — Dower  is  thus  defined  by 
Blackstone  (2  Bl.  Com.  129)  :  "Tenant  in  dower  is  where 
the  husband  of  a  woman  is  seised  of  an  estate  of  inheritance, 
and  dies ;  in  this  ease  the  wife  shall  have  the  third  part  of  all 
the  lands  and  tenements  whereof  he  was  seised  at  any  time 
during  the  coverture,  to  hold  for  herself  during  the  term  of 
her  natural  life/'  The  above  definition  omits  to  state  that 
the  husband's  lands  and  tenements  must  be  such  that  the 
wife's  issue  by  him,  if  any,  would  be  capable  of  inheriting 
them  as  heir  to  the  husband.  See  2  Bl.  Com.  131.  It  is  also 
inaccurate  in  this,  that  under  it  the  wife  would  be  dowable 
of  lands  and  tenements  of  which  her  husband  was  seised  as  a 
joint  tenant  with  a  third  person.  That  there  is  no  dower  in 
such  case,  see  §  291,  infra.2 

1  Definition  of  Dower. — It  is  difficult  to  state  with  precision, 
within  the  limits  proper  for  a  definition,  all  the  requisites- which 
must  concur  in  order  to  entitle  the  widow  to  dower  at  common 
law.  The  American  classic  on  the  subject  of  dower  is  the  learned 
and  exhaustive  work  of  Mr.  Scribner;  and  it  is  noteworthy,  that 
so  far  as  the  writer  has  been  able  to  discover,  he  nowhere  at- 
tempts a  definition  of  dower.  This  valuable  treatise  (in  two 
volumes,  of  which  a  second  edition  was  published  in  1883)  is 
recommended  to  the  reader  in  all  cases  in  which  fuller  informa- 
tion is  desired  than  it  is  possible  to  give  in  a  single  chapter  of 
an  elementary  work  on  Real  Property. 

2  Dower  Dependent  on  Possibility  of  Issue  Capable  of  Inherit- 
ing the  Husband's  Land. — In  the  English  books,  the  cases  usu- 
ally put  in  which  the  possible  issue  of  the  wife  would  be  incap- 
able of  inheriting  the  land  arise  under  settlements  of  entailed 
estates.   See  2  Bl.  Com.  131.   The  same  examples  apply  to  curtesy, 

448 


§286]  DOWER    AND    CURTESY.  449 

A  fuller  definition  of  the  dower  is  given  in  10  Am.  &  Eng. 
Ency.  Law  (2d  ed.),  125,  as  follows:  "Dower,  at  common 
law,  is  an  estate  for  life  to  which  the  wife  is  entitled  on  the 
death  of  her  husband,  in  the  third  part  of  the  legal  estates  of 

except  as  to  the  actual  birth  of  issue.  See  Williams,  R.  P.,  353 
(quoted,  infra,  p.  436,  note).  But  as  estates-tail  are  abolished  in 
the  United  States,  such  examples  are  inapplicable  here.  There  is, 
however,  another  class  of  cases  which  illustrate  the  rule,  and 
render  it  still  of  importance,  viz.,  cases  in  which  the  limitation  is 
so  framed  that  the  issue,  if  they  take  at  all,  must  take  by  pur- 
chase, and  not  by  descent. 

The  leading  cases  under  this  head  are  Sumner  v.  Partridge,  2 
Atk.  47,  and  Barker  v.  Barker,  2  Sim.  249 — both  cases  of  curtesy, 
but  equally  applicable  to  dower.  Thus  in  Sumner  v.  Partridge, 
supra,  there  was  a  devise,  "To  A  and  her  heirs;  and  if  she  die 
before  her  husband,  he  to  have  £20  a  year  for  life;  remainder  to 
go  to  her  children."  The  wife  died  before  the  husband,  and  he 
claimed  curtesy.  In  denying  it,  Lord  Hardwicke  said:  "A  ten- 
ancy by  the  curtesy  must  arise  out  of  the  inheritance,  which 
must  vest  in  the  wife,  and  there  must  be  a  possibility  of  its  de- 
scending on  the  children;  now  they  take  hereby  virtue  of  a  re- 
mainder over,  not  by  descent  from  the  mother.  .  .  .  Neither 
a  tenant  in  dower  or  curtesy  can  entitle  themselves  to  an  estate 
in  dower,  or  curtesy,  where  the  children  who  are  left  cannot 
possibly  take  an  inheritance,  for  the  moment  of  time  the  husband 
takes  by  the  curtesy,  the  inheritance  must  descend  on  the  chil- 
dren; and  therefore  it  is  impossible  in  the  present  case  to  main- 
tain the  father  is  tenant  by  the  curtesy."  See  1  Scribner,  Dower, 
227,  310;  1  Bishop,  Mar.  Worn.  §  251,  481;  1  Bright,  H.  &  W.,  122, 
327;  2  Min.  Ins.  (4th  ed.),  128,  152. 

It  is  noticeable  that  the  Virginia  statute  (C.  V.  §  2267)  seems 
to  confer  the  right  of  dower  without  regard  to  the  requisite  now 
under  consideration.  It  declares:  "A  widow  shall  be  endowed 
of  one-third  of  all  the  real  estate  whereof  her  husband,  or  any 
other  to  his  use,  was,  at  any  time  during  the  coverture,  seised 
of  an  estate  of  inheritance,  unless  her  right  to  such  dower  shall 
have  been  lawfully  barred  or  extinguished."  In  New  Jersey,  un- 
der a  similar  statute,  the  point  was  mooted  (though  not  passed 
on  by  the  court)  whether  the  widow  was  not  entitled  to  dower 
regardless  of  the  potentiality  of  her  possible  issue  to  inherit. 
Montgomery  v.  Bruere,  4  N.  J.  Law,  300,  305.  It  is  not  believed, 
however,  that  any  such  change  is  contemplated  by  the  Virginia 

29 


450  REAL    PROPERTY.     •  [Chap.  14 

inheritance  in  lands  and  tenements  of  which  the  husband  was 
seised  in  deed  or  in  law,  in  fee  simple  or  fee  tail,  at  any  time 
during  the  coverture,  and  to  which  any  issue  which  the  wife 
might  have  had  might  by  any  possibility  have  been  heir." 
This  definition  seems  complete  and  satisfactory,  except  that, 
like  Blackstone's  above,  it  would  give  the  wife  dower  in  lands 
and  tenements  of  which  the  husband  was  seised  as  a  joint 
tenant  with  a  third  person.1 

It  will  be  observed  that  both  of  the  above  definitions  are 
of  dower  consummate  by  the  death  of  the  husband.  For  the 
nature  of  the  inchoate  dower  right  of  a  wife  during  coverture, 
see  p.  438,  infra,  note. 

statute.  As  has  been  seen  above,  Blackstone's  definition  of 
dower  omits  this  requisite,  but  he  afterwards  states  it  explicitly. 
No  doubt  the  framers  of  the  Virginia  statute  were  following 
Blackstone's  definition,  adding  to  it  the  words,  "or  any  other  to 
his  use;"  and  their  attention  was  not  directed  to,  nor  did  they 
mean  to  recite,  all  the  recognized  common  law  requisites  for 
dower. 

1  Summary  of  Requisites  for  Dower. — The  following  descrip- 
tion of  dower  is  taken  from  Williams  on  Real  Property  (17th  ed.) 
367:  "If  at  any  time  during  the  coverture  the  husband  became 
solely  seised  [or,  rather,  seised  otherwise  than  in  joint  tenancy] 
of  any  estate  of  inheritance,  that  is  fee  simple  or  fee  tail,  in 
lands  to  which  any  issue,  which  the  wife  might  have  had,  might 
by  possibility  have  been  heir,  she  from  that  time  became  entitled, 
on  his  decease,  to  have  one  equal  third  part  of  the  same  lands 
allotted  to  her,  to  be  enjoyed  by  her  in  severalty  during  the  re- 
mainder of  her  life.  ...  It  was  necessary,  however,  that 
the  husband  should  be  seised  of  an  estate  of  inheritance  at  law; 
for  the  Court  of  Chancery,  whilst  it  allowed  to  husbands  curtesy 
of  their  wives'  equitable  estates,  withheld  from  wives  a  like  privi- 
lege of  dower  out  of  the  equitable  estates  of  their  husbands.  The 
estate  moreover  must  have  been  held  in  severalty  or  in  common, 
and  not  in  joint  tenancy.  .  .  .  The  estate  was  also  required 
to  be  an  estate  of  inheritance  in  possession;  although  a  seisin  in 
law  obtained  by  the  husband  was  sufficient  to  cause  his  wife's 
right  of  dower  to  attach.  In  no  case  also  was  any  issue  required 
to  be  actually  born;  it  was  sufficient  that  the  wife  might  have 
had  issue  who  might  have  inherited.'' 


§§286,287]  DOWER    AND    CURTESY.  451 

§  287.  Definition  of  Curtesy. — Curtesy  is  thus  defined  by 
Blaekstone  (2  Bl.  Com.  126)  :  "Tenant  by  the  curtesy  of 
England  is  where  a  man  marries  a  woman  seised  of  an  estate 
of  inheritance,  that  is,  of  lands  and  tenements  in  fee  simple 
or  fee  tail,  and  has  by  her  issue  born  alive,  which  was  capable 
of  inheriting  her  estate.  In  this  case  he  shall,  on  the  death 
of  his  wife,  hold  the  lands  for  his  life,  as  tenant  by  the  curtesy 
of  England."  The  above  definition  omits  to  state  that  the 
seisin  of  the  wife  must  be  actual  or  in  fact,  and  not  a  mere 
seisin  in  law.  It  is  also  inaccurate  in  this  that  it  would  give 
to  a  husband  curtesy  in  lands  of  which  the  wife  was  seised 
jointly  with  a  third  person  who  survived  her.  See  §  291, 
infra.1 

1  Valid  Marriage  Essential  to  Right  of  Dower  or  Curtesy. — 
Of  course,  if  there  is  no  pretense  of  marriage,  but  only  a  meretri- 
cious connection,  between  a  man  and  woman,  she  is  not  entitled 
to  dower  in  his  land.  Robinson  v.  Robinson,  188  111.  371  (58  N. 
E.  906).  And  though  there  is  a  proper  marriage  ceremony,  there 
is  no  marriage,  and  therefore  no  dower,  if  for  disabilities  exist- 
ing at  the  time  of  its  celebration  the  so-called  marriage  is  ipso 
facto  null  and  void.  And  in  this  case,  as  the  marriage  is  void, 
there  need  be  no  decree  of  divorce,  or  other  legal  process.  But 
if  the  effect  of  the  disability  is  to  render  the  marriage  not  void, 
but  voidable  only,  then  the  marriage  is  valid  for  all  civil  pur- 
poses unless  it  is  annulled  during  the  life  of  both  parties.  Un- 
less, therefore,  such  voidable  marriage  be  annulled  in  the  life- 
time of  the  husband,  the  widow  will  be  entitled  to  dower.  2  Bl. 
Com.  434,  436;  1  Washb.  Real  Prop.  (5th  ed.)  221;  1  Scribner, 
Dower  130;  19  Am.  &  Eng.  Ency.  Law  (2d  ed.)  1210;  Price  v. 
Price,  124  N.  Y.  581  (27  N.  E.  383);  Mcllvain  v.  Scheibley  (Ky.), 
59  S.  W.  498. 

From  the  above  it  is  manifest  that  it  is  highly  important  when 
a  widow  claims  dower,  and  there  has  been  no  decree  of  nullity, 
or  divorce,  to  distinguish  between  a  marriage  void  ipso  facto  on 
the  one  hand,  and  a  marriage  merely  voidable  on  the  other.  It  is 
not  proposed,  however,  to  enter  fully  into  the  subject  here.  Refer- 
ence is  made  to  the  authorities  cited  above,  and  also  to  2  Min.  Ins. 
(4th  ed.)  115,  135,  and  1  Bishop,  Marr.,  Div.,  and  Sep.,  §§  252-292, 
where  the  subject  is  discussed  at  length.  It  will  be  sufficient  to 
state  that  by  the  law  of  Virginia  the  only  void  marriages  are: 
(1)    Those  between  a  white  person  and  a  colored  person;    (2) 


452  REAL    PROPERTY.  [Chap.  14 

A  fuller  definition  of  curtesy  is  given  in  4  Kent  Com. 
(13th  ed.)  27:  "Tenancy  by  the  curtesy  is  an  estate  for  life 
created  by  the  act  of  the  law.  When  a  man  married  a  woman 
seised,  at  any  time  during  the  coverture,  of  an  estate  of  in- 
heritance in  severalty,  in  coparcenary,  or  in  common,  and 
has  issue  by  her  born  alive,  and  which  might  by  possibility 

those  which  are  prohibited  by  law  on  account  of  either  of  the 
parties  having  a  former  wife  or  husband  then  living;  and  (3) 
those  solemnized  when  either  of  the  parties  was  under  the  age 
of  consent  (14  for  the  male,  and  12  for  the  female),  if  they  sepa- 
rate during  such  non-age,  and  do  not  cohabit  afterwards.  C.  V., 
§§  2252,  2254.  On  the  other  hand,  it  is  declared  (§  2252)  that  "all 
marriages  which  are  prohibited  by  law  on  account  of  consan- 
guinity or  affinity  between  the  parties;  all  marriages  solemnized 
when  either  of  the  parties  was  insane,  or  incapable  from  physical 
causes  of  entering  into  the  marriage  state,  shall,  if  solemnized 
within  this  State,  be  void  from  the  time  they  shall  be  so  declared 
by  a  decree  of  divorce,  or  nullity,  or  from  the  time  of  the  convic- 
tion of  the  parties  under  §  3783."  For  the  effect  on  dower  of  a 
divorce  a  vinculo  for  original  or  supervenient  causes,  see  §  — , 
infra. 

As  to  the  ceremonial  of  marriage,  the  view  taken  of  the  com- 
mon law  in  the  United  States  is  that  by  it  a  valid  marriage 
could  be  constituted  by  the  present  consent  of  competent  parties 
(per  verba  de  praesenti)  or  per  verba  de  futuro  cum  copula.  And 
further  it  is  the  general  doctrine  in  the  United  States  that  stat- 
utes regulating  the  marriage  ceremony  by  requiring  certain  for- 
malities are,  in  the  absence  of  express  words  of  nullity  in  case  of 
their  omission,  to  be  deemed  not  mandatory,  but  directory  only; 
and  a  marriage  valid  at  common  law  is  still  valid  under  the  stat- 
utes, though  their  requirements  are  disregarded.  See  1  Bishop 
Marr.,  Div.  and  Sep.  410,  438;  Meister  v.  Moore,  96  U.  S.  76;  and 
6  Va.  Law  Reg.  437,  where  many  authorities  are  collected.  But 
in  Offield  v.  Davis  (Va.),  40  S.  E.  910,  it  is  declared  that  §  2222 
of  the  Code  is  mandatory  and  not  directory  in  its  provisions,  and 
that  it  wholly  abrogates  the  common  law  of  marriage,  so  that  no 
marriage,  if  it  takes  place  in  Virginia,  is  valid  (if  not  within  the 
statutory  exceptions)  unless  under  a  license,  and  solemnized  ac- 
cording to  the  statute;  and  it  was  held  that  a  woman  relying 
upon  a  marriage  with  the  decedent  by  mutual  consent,  without  a 
license  and  without  a  celebrant,  could  not  recover  dower  in  such 
decedent's  land.    And  see,  to  the  same  effect,  though  by  way  of 


§  287]  DOWER    AND    CURTESY.  453 

inherit  the  same  estate  as  heir  to  the  wife,  and  the  wife  dies 
in  the  lifetime  of  the  husband,  he  holds  the  land  during  his 
life  by  the  curtesy  of  England;  and  it  is  immaterial  whether 
the  issue  be  living  at  the  time  of  the  seisin,  or  at  the  death  of 
the  wife,  or  whether  it  was  born  before  or  after  the  seisin." 
This  definition  is  full  and  satisfactory,  except  that,  like 
Blackstone's,  it  omits  to  state  that  the  seisin  of  the  wife  must 
be  actual  or  in  fact,  and  not  a  mere  seisin  in  law.1 

It  will  be  observed  that  the  above  definitions  are  of  curtesy 
consummate  by  the  death  of  the  wife.  For  the  nature  of 
curtesy  initiate  during  the  coverture,  beginning  as  soon  as  the 

dictum,  Beverlin  v.  Beverlin,  29  W.  Va.  732,  under  a  statute  iden- 
tical with  that  in  Virginia. 

It  need  hardly  be  added  that  the  above  principles  are  equally 
applicable  when  a  man  claims  curtesy  in  a  woman's  land. 

1  Sujimary  of  Requisites  for  Curtesy. — The  following  descrip- 
tions of  curtesy  is  taken  from  Williams  on  Real  Property  (17th 
ed.),  p.  353:  "The  husband  also  required  by  marriage  a  seisin 
of  all  his  wife's  freeholds  jointly  with  her.  [This,  as  tenant  by 
marital  right.]  If,  however,  the  husband  had  issue  by  his  wife 
born  alive  that  might  by  possibility  inherit  the  estate  as  her 
heir,  he  became  entitled  to  an  estate,  after  his  wife's  death,  for 
the  residue  of  his  own  life,  in  such  lands  and  tenements  of  his 
wife  as  she  was  solely  seised  of,  in  fee  simple  or  fee  tail  in  pos- 
session. The  husband,  while  in  the  enjoyment  of  this  estate,  was 
called  tenant  by  the  curtesy  of  England,  or  more  shortly,  tenant 
by  the  curtesy.  But  the  estate  must  have  been  a  several  one,  or 
else  held  under  a  tenancy  in  common,  and  must  not  have  been 
one  of  which  the  wife  was  seised  jointly  with  any  other  person 
or  persons.  .  .  .  The  husband  must  also  have  had  by  his 
wife  issue  born  alive.  .  .  .  The  issue  must  also  have  been 
capable  of  inheriting  as  heir  to  the  wife.  Thus,  if  the  wife  were 
seised  of  lands  in  tail  male,  the  birth  of  a  daughter  only  would 
not  entitle  her  husband  to  be  tenant  by  the  curtesy;  for  the 
daughter  could  not  by  possibility  inherit  such  an  estate  from  her 
mother.  And  it  was  necessary  that  the  wife  should  have  acquired 
an  actual  seisin  of  all  estates  of  which  it  was  possible  that  an 
actual  seisin  could  be  obtained;  for  the  husband  had  it  in  his 
own  power  to  obtain  for  his  wife  an  actual  seisin;  and  it  was  his 
own  fault  if  he  had  not  done  so." 


454  REAL    PROPERTY.  [Chap.  14 

husband  has  by  the  wife  issue  born  alive,  capable  of  inherit- 
ing her  land,  see  §  — ,  infra. 

§  288.  Origin  of  Dower  and  Curtesy. — For  the  different 
views  as  to  the  origin  of  the  expression  "by  the  curtesy  of 
England,"  see  2  Bl.  Com.  (126)  :  Digby,  Hist.  Law  of  Eeal 
Prop.  (4th  ed.)  173;  8  Am.  &  Eng.  Ency.  Law  (2d  ed.)  508. 
The  better  opinion  is  that  the  husband  was  called  tenant  by 
the  curtesy  because,  after  issue  born,  he  was  entitled  to  do 
homage  alone  for  the  wife's  lands  of  inheritance,  and  thus 
became  one  of  the  pares  curtis,  or  attendants  upon  the  lord's 
court.  1  Washb.  on  E.  P.  (128) ;  Porter  v.  Porter,  27  Grat. 
599 ;  Breeding  v.  Davis,  77  Va.  639,  646. 

Though  it  is  usually  said  that  curtesy  is  not  of  feudal  ori- 
gin, yet  Blackstone  is  of  opinion  that  substantial  feudal  rea- 
sons can  be  given  for  its  introduction.  2  Bl.  Com.  (126)  ;  1 
Washb.  on  E.  P.  (128).  Thus,  as  we  have  seen,  after  issue 
born  capable  of  being  heir  to  the  wife's  lands,  the  husband  did 
homage  for  them  alone;  his  life  estate  as  tenant  by  the  cur- 
tesy initiate  then  began ;  and  tenure  was  established  between 
the  husband  and  the  lord.  As  long  as  the  husband  lived,  the 
lord  had  an  adult  retainer  to  perform  the  feudal  services,  a 
matter  of  great  importance.  Poindexter  v.  Jeffries,  15  Graft. 
376;  Brown  v.  Bochover,  84  Va.  424;  Wyatt  v.  Smith,  25 
W.  Va.  813;  Arnold  v.  Bunnell,  42  W.  Va.  473  (26  S.  E. 
359). 

Dower,  however,  is  not  of  feudal  origin.  It  is  an  estate 
holden  by  the  widow  of  the  heir,  who  holds  of  the  lord. 
There  is  no  tenure,  therefore,  between  the  dowress  and  the 
lord,  and  her  interest  in  the  land  is  regarded  as  received  from 
her  husband  for  her  support  after  his  death;  though  by  his 
death  the  land  and  the  duty  of  assigning  dower  devolve  upon 
the  heir,  of  whom  the  widow  holds  by  subinfeudation.  "She 
comes  to  her  dower  in  the  per  i.  e.  by  her  husband,  and  is  in 
in  continuance  of  his  estate."  1  Tho.  Coke,  589,  n.  (Y)  ;  2 
Scribner,  Dower  (2d  ed.)  772;  2  Min.  Ins.   (4th  ed.)   160; 


§§287-289]  DOWER    AND    CURTESY.  455 

Emerson  v.  Harris,  6  Mete.  (Mass.)  475;  Johnson  v.  Gordon, 
102  Ga.  350  (30  S.  E.  507).1 

§  289.    Differences  Between  Curtesy  and  Bower. — Let  us 

see  how  the  differences  between  curtesy  and  dower  ma}'  be 
accounted  for  on  principle. 

Curtesy,  because  of  tenure,  arose  on  the  birth  of  issue; 
dower,  because  needed  for  support,  whether  there  was  issue  or 
not.  Curtesy  was  of  all  the  wife's  lands,  because  the  husband 
had  done  homage  for  all;  dower  of  one-third  of  the  husband's 
as  enough  for  the  wife's  maintenance.  Curtesy,  because  of 
tenure,  could  only  attach  where  the  wife  had  actual  seisin; 
dower,  because  of  bounty,  was  allowed  in  lands  of  which  the 
husband  had  only  seisin  in  law.  Curtesy  vested  without  as- 
signment, because  the  husband  was  already  in  possession; 
dower  vested  under  the  heir's  assignment,  as  the  widow  must 
hold  under  him.  Curtesy  was  not  avoided  by  the  husband's 
adultery,  because  held  of  the  lord  in  consideration  of  feudal 
services;   dower  was  forfeited  by  the  wife's  elopement  and 

Origin  of  Dower. — In  1  Bishop,  Lmo  of  Married  Women  (a 
valuable  and  suggestive  work,  now  unfortunately  out  of  print) 
it  is  said,  §  245:  "Legal  writers  differ  in  their  statements  of  the 
history  of  the  law  of  dower.  It  is  important  for  us  only  to  know 
that  dower  existed  in  some  form  in  the  very  early  periods  of  the 
English  law,  and  that  it  was  always  deemed  to  be  given  by  way 
of  sustenance  to  the  widow.  Some  of  the  old  books  add  'and  chil- 
dren'; but  it  is  not  difficult  to  see  that  this  is  an  interpolation 
upon  the  true  doctrine — the  law  having  made  other  provision  for 
the  maintenance  of  the  children.  As  observed  by  the  editor  of 
the  11th  edition  of  Coke  upon  Littleton:  'The  reason  why  the 
law  gives  the  wife  dower  will  appear  if  we  consider  how  the  law 
stood  anciently;  for  by  the  old  law,  if  this  provision  had  not  been 
made,  and  the  party  at  the  marriage  had  made  no  assignment  of 
dower,  the  wife  would  have  been  without  any  provision.  For  the 
personal  estates  even  of  the  richest  were  then  very  inconsider- 
able; and  before  trusts  were  invented  (which  is  but  lately),  the 
husband  could  give  the  wife  nothing  during  his  own  life;  nor 
could  he  provide  for  her  by  will,  because  lands  could  not  be  de- 
vised (unless  it  were  in  some  particular  places  by  custom)  till 
the  Statute  of  Hen.  8.' " 


456  REAL    PROPERTY.  [Chap.  14 

adultery,  which  proved  her  unworthy  of  the  husband's  bounty. 
In  a  word,  curtesy  was  a  matter  between  the  lord  and  his 
vassal,  the  husband ;  dower  a  matter  between  the  husband  and 
his  wife.1 

§  290.  Difference  between  Seisin  in  Fact,  Seisin  in  Law, 
and  a  Right  of  Action  or  Entry. —  (1)  Seisin  in  Fact — This 
was  obtained  at  common  law  by  livery  of  seisin  made  upon  a 
feoffment,  or  by  actual  entry  of  the  heir  on  the  ancestor's  land. 
Now  it  is  obtained  by  the  entry  of  the  heir;  and  also,  con- 
structively, by  a  patent  from  the  State,  by  a  deed  operating 

1  Nature  of  a  Wife's  Inchoate  Right  of  Dower. — In  the  lifetime 
of  the  husband,  the  dower  of  the  wife  is  inchoate,  i.  e.,  her  right 
to  dower,  while  attached  in  a  sense  to  the  lands  of  which  the 
husband  is,  or  has  been,  seised  during  the  coverture,  is  potential 
only,  and  contingent  on  her  surviving  him.  The  nature  of  in- 
choate dower  is  well  stated  in  Witthaus  v.  Scliack,  105  N.  Y.  332, 
336,  by  Ruger,  C.  J.:  "The  settled  theory  of  the  law  as  to  the  na- 
ture of  an  inchoate  right  of  dower  is  that  it  is  not  an  estate  or 
interest  in  land  at  all,  but  is  a  contingent  claim  arising,  not  out 
of  contract,  but  as  an  institution  of  law,  constituting  a  mere 
chose  in  action,  incapable  of  transfer  by  grant  or  conveyance,  but 
susceptible  only,  during  its  inchoate  state,  of  extinguishment.  By 
force  of  the  statute,  this  is  effected  by  the  act  of  the  wife  in 
joining  with  her  husband  in  the  execution  of  a  deed  of  the  land. 
Such  deed,  so  far  as  the  wife  is  concerned,  operates  as  a  release 
or  satisfaction  of  the  interest,  and  not  as  a  conveyance,  and  re- 
moves an  encumbrance,  instead  of  transferring  an  interest  or 
estate."  See  similar  language  used  by  Staples,  J.,  in  Corr  v. 
Porter,  33  Gratt.  (Va.)  278,  285,  quoted  infra  in  §  304.  The  same 
view  is  taken  of  a  wife's  contingent  dower  in  Mason  v.  Mason, 
140  Mass.  63  (3  N.  E.  19) ;  Flynn  v.  Flynn,  171  Mass.  312  (68  Am. 
St.  Rep.  427);  Smith  v.  Howell,  53  Ark.  279  (13  S.  W.  929); 
Hatcher  v.  Buford,  60  Ark.  169  (29  S.  W.  641) ;  Gatewood  v.  Tom- 
linson  (Ga.)  18  S.  E.  318;  Johnson  v.  Gordon  (Ga.)  30  S.  E.  507; 
Blevins  v.  Smith,  104  Mo.  583  (16  S.  W.  213);  Youmans  v.  Wag- 
ner, 30  S.  C.  302  (9  S.  E.  106) ;  Brooks  v.  McMeekin,  37  S.  C.  285 
(15  S.  E.  1019);  Tomlinson  v.  Nickell,  25  W.  Va.  148;  George  v. 
Hess,  48  W.  Va.  534  (37  S.  E.  564).  And  see  1  Washb.  Real.  Prop. 
(5th  ed.)  312;  2  Scribner,  Dower  (2d  ed.)  5-8;  10  Am.  &  Eng. 
Ency.  Law  (2d  ed.)  142;  1  Bishop  Mar.  Worn.  §  347. 


§§289,290]  DOWER    AND    CURTESY.  457 

under  the  Statute  of  Uses,  by  the  statutory  deed  of  grant 
in  Virginia,  and,  it  is  said,  by  a  devise.  Clay  v.  White,  1 
Munf.  (Va.)  162  (see  §  141,  supra);  Carpenter  v.  Garrett, 
75  Va.  129;  Muse  v.  Friedenwald,  77  Va.  57;  Seim  v. 
0 'Grady,  42  W.  Va.  77  (24  S.  E.  994).  See  also,  Co.  Litt. 
Ill  a;  2  Tho.  Co.  645;  2  Min.  Ins.  (4th  ed.)  123.  At  com- 
mon law,  seisin  in  fact,  actual  or  constructive,  is  required  of 
the  wife's  land  in  order  to  entitle  the  husband  to  curtesy 
therein.  See  references  above,  and  also  1  Bishop,  Mar.  Worn. 
§§  250,  496-506;  4  Kent  Com.  29;  1  Washb.  Eeal  Prop. 
135. x  See,  also,  note  to  Jackson  v.  Johnson  (N~.  Y.),  15  Am. 
Dec.  450. 

1  Seisin  for  Curtesy — Why  Actual  Seisin  Required  at  Com- 
mon Law. — The  strictness  of  the  common  law  in  requiring  actual 
entry  on  land  descended  to  the  wife  in  order  to  entitle  the  hus- 
band to  curtesy,  is  thus  illustrated  by  Perkins  (Profitable  Book, 
470) :  "But  if  possession  in  law  of  lands  or  tenements  in  fee  de- 
scend unto  a  married  woman,  which  lands  are  in  the  county  of 
York,  and  the  husband  and  his  wife  are  dwelling  in  the  county  of 
Essex,  and  the  wife  dieth  within  one  day  after  the  descent,  so  as 
the  husband  could  not  enter  during  the  coverture  for  the  short- 
ness of  the  time,  yet  he  shall  not  be  tenant  by  the  curtesy;  and 
yet,  according  to  common  pretense,  there  is  no  default  in  the 
husband.  But  it  may  be  said  that  the  husband  of  the  woman, 
before  the  death  of  the  ancestor  of  the  woman,  might  have  spoken 
unto  a  man  dwelling  near  unto  the  place  where  the  lands  lay,  to 
enter  for  the  woman,  as  in  her  right,  immediately  after  the  death 
of  her  ancestor." 

The  true  reason  for  denying  curtesy  at  common  law  to  the  hus- 
band of  a  wife  never  actually  seised  is  the  default  of  the  husband 
in  not  obtaining  for  his  wife  the  actual  seisin  during  the  cover- 
ture, and  not,  as  is  stated  by  Coke  and  Blackstone,  because  such 
actual  seisin  was  necessary  to  make  the  wife  the  stock  of  descent. 
See  for  elaborate  refutation  of  this  doctrine  of  Coke  and  Black- 
stone,  Wms.,  Real  Prop.,  Appendix  D.  Also  1  Lorn.  Dig.  p.  78, 
note;  2  Min.  Ins.  (4th  ed.)  123.  It  follows  that  a  change  of  the 
law  of  descent,  allowing  the  ancestor  to  be  the  stock  without  ac- 
tual seisin,  does  not  per  se  affect  the  rule  requiring  actual  seisin 
of  the  wife  to  entitle  the  husband  to  curtesy.  1  Bishop,  Max. 
Worn.  §  299.  But  in  Connecticut  and  Ohio  the  reason  of  Coke  and 
Blackstone  for  denying  curtesy  in  the  lands  of  a  non-seised  wife 


458  REAL    PROPERTY.  [Chap.  14 

(2)  Seism  in  Law. — This  is  the  seisin  of  an  heir  before 
entry  on  the  land,  after  descent  cast  on  him  by  the  death  of 
the  ancestor,  provided  there  is  no  person  in  possession  holding 
adversely  to  the  heir.  Such  seisin  in  law  is  at  common  law 
sufficient  for  dower,  but  it  is  not  sufficient  for  curtesy.  1 
Scribner,  Dower,  251;  1  Bishop,  Mar.  Worn.  §  250;  10  Am. 
&  Eng.  Ency.  Law,  131. 

(3)  Right  of  Entry  or  Action. — When  the  owner  of  land 
is  out  of  possession,  and  another  is  in  possession  adversely 
to  him,  claiming  the  land  as  his  own,  such  owner  has  no 
seisin  either  in  fact  or  in  law,  but  a  mere  right  of  entry  or 
action.  Another  example  is  the  right  of  the  grantor  of  land 
on  condition  subsequent  to  make  entry  or  bring  an  action 
to  enforce  forfeiture  for  its  breach.  See  §  137,  supra;  also 
§  275,  supra.  At  common  law  there  was  neither  curtesy  nor 
dower  in  a  mere  right  of  entry  or  action ;  but  in  England  and 
in  some  of  our  States  dower  is  now  allowed  therein  by  statute.1 

is  approved,  and  the  effect  of  the  abolition  of  the  maxim  seisina 
facit  stipitem  in  those  States  is  held  to  be  to  give  to  the  husband 
curtesy,  not  only  in  lands  of  which  the  wife  had  during  the  cover- 
ture only  a  seisin  in  law,  but  even  in  lands  of  which  she  had  a 
mere  right  of  entry,  the  lands  being  in  the  adverse  possession  of 
a  third  person.  Bush  v.  Bradley,  4  Day  (Conn.)  498;  Borland  v. 
Marshall,  2  Ohio  St.  308.  See  1  Washb.  R.  P.  182;  8  Am.  and  Eng. 
Ency.  Law,  512. 

1  Dower  in  Right  of  Entry  or  Action. —  (1)  At  Common  haw. 
— The  text-writers  usually  quote  this  language  from  Perkins 
(§  366) :  "If  a  man  seised  of  land  in  fee  be  disseised  of  the  same, 
and  then  take  a  wife,  and  die  without  re-entering,  she  shall  not 
have  dower."  On  this  Scribner  comments  as  follows:  "The  ma- 
terial point  in  this  case,  it  will  be  observed,  consists  in  the  fact 
that  the  seisin  of  the  husband  was  divested  by  the  entry  of  the 
disseisor  oefore  the  marriage,  and  continued  thus  divested  during 
the  whole  period  of  the  coverture.  The  husband  had  a  right  of 
entry  on  the  land,  but  this  was  not  sufficient  to  give  dower  to  the 
wife.  Had  he  defeated  the  wrongful  estate  of  the  disseisor  by 
ousting  him  from  the  possession  at  any  time  during  the  coverture, 
the  seisin  would  have  been  restored  to  him,  and  would  have  en- 
titled her  to  dower;  but  inasmuch  as  the  right  of  entry  was  not 


§290]  DOWER    AND    CURTESY.  459 

At  common  law,  as  has  been  said,  it  is  essential  for  curtesy 
that  the  wife,  or  the  husband  for  her,  should  have  had  seisin 
in  fact  of  her  lands  during  coverture.  But  this  rule  has  been 
greatly  relaxed  in  the  United  States.    See  2  Bl.  Com.  (Shars- 

asserted,  there  was  no  moment  of  time  during  the  coverture 
when,  in  contemplation  of  law,  he  was  seised  of  the  premises. 
This  is  one  of  the  instances  mentioned  by  Perkins  in  which  the 
husband  may  prejudice  his  wife  in  her  dower  by  his  laches  of 
entry."    1  Scribner,  Dower,  (2d  ed.)  255. 

In  1  Park  on  Dower,  25,  after  quoting  Perkins  as  above,  it  is 
added:  "Upon  the  same  principle,  if  a  man  grant  an  estate  on 
condition  [subsequent]  on  the  part  of  the  grantee,  and  afterwards 
marries,  although  the  condition  is  broken  in  his  lifetime,  yet  as 
a  condition  annexed  to  an  estate  of  freehold  will  not  revest  the 
estate  in  the  grantor  without  entry  or  claim,  if  he  neglects  to 
take  advantage  of  the  breach,  his  wife  will  not  be  dowable,  for  he 
had  no  more  [at  any  time  during  the  coverture]  than  a  right  or 
title  of  entry  for  condition  broken."  See,  also,  10  Am.  &  Eng. 
Ency.  Law  (2d  ed.)  132;  Thompson  v.  Thompson,  1  Jones,  L.  (46 
N.  C.)  430;  Ellis  v.  Kyger,  90  Mo.  600  (3  S.  W.  23). 

(2)  Under  Statute. — The  English  act  giving  dower  "in  a  right 
of  entry  or  action  in  any  land"  was  passed  August  29,  1833,  but 
applies  only  to  the  dower  of  women  married  after  January  1, 
1834.  See  1  Scribner,  Dower,  Appendix;  also  p.  448,  infra,  note. 
The  Virginia  statute  is  based  on  the  English  (Rep.  Rev.  Va.  Code 
of  1849,  p.  564,  note),  and  is  as  follows  (Code,  1849,  ch.  110,  §  2; 
Code,  1887,  §  2268): 

"When  a  husband,  or  any  other  to  his  use,  shall  have  been  en- 
titled to  a  right  of  entry  or  action  in  any  land,  and  his  widow 
would  be  entitled  to  dower  out  of  the  same  if  the  husband  or 
such  other  had  recovered  possession  thereof,  she  shall  be  entitled 
to  such  dower,  although  there  shall  have  been  no  recovery  of 
possession." 

The  construction  of  the  above  statute  is  not  free  from  diffi- 
culty. It  seems  plain  that  the  intention  is,  when  the  husband 
dies  entitled  to  entry  or  action,  not  to  allow  the  heir  to  recover 
the  land  for  his  sole  benefit,  but  to  allow  the  widow  dower  there- 
in. But  suppose  the  heir  declines  to  make  entry  for  breach  of 
condition  subsequent  (preferring  to  waive  the  right),  or  is  un- 
willing to  proceed  against  the  disseisor  of  the  husband.  Clearly, 
the  heir  would  not  be  allowed  thus  to  defeat  the  right  of  dower 
which  the  statute  expressly  gives  the  widow,  assuming  that  the 


460  REAL    PROPERTY.  [Chap.  14 

wood's  ed.)  127,  n.  11.  Certainly  in  case  of  wild  and  un- 
cultivated lands,  actual  entry  is  generally  held  unnecessary. 
Jackson  v.  Sellick,  8  Johns,  262;  Davis  v.  Mason,  1  Pet. 
503;  Mettlcr  v.  Miller,  129  111.  630  (22  N.  E.  529)  ;  1  Lorn. 

husband  at  his  death  still  had  a  right  of  entry  or  action.  But 
what  would  be  the  widow's  remedy?  Probably  a  bill  in  equity 
under  §  2276  of  the  Code  would  lie,  the  heir  at  law  and  the  dis- 
seisor, or  the  grantee  on  condition,  being  made  parties  defendant, 
and  perhaps,  under  the  same  statute,  an  action  of  ejectment 
would  be  allowable.   See  2  Min.  Ins.  (4th  ed.)  162. 

But  suppose  the  husband,  though  at  one  time  during  the  cover- 
ture entitled  to  entry  or  action,  waives  in  his  lifetime  the  right 
of  entry  for  condition  broken,  or  compromises  or  releases  his 
claim  against  the  disseisor;  can  the  widow,  nevertheless,  demand 
her  dower,  on  the  ground  that  the  statute  so  provides?  The  lan- 
guage of  the  statute  does  not  make  it  clear  whether  it  is  enough 
that  the  husband  was  entitled  to  the  right  of  entry  or  action  at 
any  time  during  the  coverture,  or  whether  he  must  be  so  entitled 
at  his  death.  It  is  believed  that  the  latter  is  the  true  construc- 
tion, and  that  the  statute  is  not  intended  to  deprive  the  husband 
of  his  right  to  waive  the  condition,  or  to  release  his  claim,  but 
only  to  give  dower  as  against  the  heir  when  the  husband  has  not 
so  waived  or  released.  It  will  be  seen  hereafter  (§  293)  that  the 
general  rule  denies  dower  in  equitable  estates  unless  they  exist 
as  the  husband's  property,  at  the  time  of  his  death;  and  though 
the  rule  in  Virginia  is  otherwise  (§  294,  infra),  it  is  based  on  the 
language  of  statutes  different  from  that  now  under  consideration. 
And  see  also  p.  450,  infra,  note  2,  where  it  is  argued  that,  even 
under  the  Virginia  statutes  above  referred  to,  the  husband  may 
defeat  his  widow's  dower  in  land  he  has  contracted  to  purchase 
by  a  rescission  of  the  contract  in  his  lifetime.  The  same  reason 
of  policy  would  seem  to  permit  a  husband  to  deal  as  he  pleases 
with  a  mere  right  of  entry  or  action,  regardless  of  his  wife's 
contingent  right  of  dower. 

The  only  case  in  which  §  2268  has  been  relied  on  in  Virginia  is 
Chapman  v.  Chapman,  92  Va.  537.  It  was  there  contended  that 
when  the  vendee  of  land  who  has  been  put  into  possession,  but 
has  not  received  a  deed,  is  in  default  in  the  payment  of  the 
balance  of  the  purchase  money,  this  gives  the  vendor  a  right  of 
action  to  recover  the  land,  and  therefore  his  widow  would  be  en- 
titled to  her  dower  under  the  statute.  The  purchaser  was  found 
not  to  have  been  in  default;  but  the  court  said,  even  if  he  had 


§290]  DOWER    AND    CURTESY.  461 

Dig.  64.  And  in  some  of  the  States  seisin  in  law,  even  in  the 
case  of  cultivated  lands,  is  deemed  sufficient,  provided  always 
there  is  no  adverse  possession  to  reduce  it  to  a  mere  right  of 
entry.  Wms.  E.  P.  229,  n.  2;  1  Bish.  Mar.  Worn.  §  510;  8 
Am.  &  Eng.  Ency.  Law  (2d  ed.)  512.  In  Virginia  and  West 
Virginia  seisin  in  fact,  actual  or  constructive,  is  necessary, 
except,  perhaps,  in  the  case  of  wild  lands.  Carpenter  v.  Gar- 
rett, 75  Va.  129;  Muse  v.  Friedenwald,  77  Va.  57;  Fulton  v. 
Johnson,  24  W.  Va.  95;  Seim  v.  0' Grady,  42  W.  Va.  77  (24 
S.  E.  995).  And  in  Kentucky  seisin  in  fact  is  necessary 
even  in  the  case  of  wild  lands.  Neely  v.  Butler,  10  B.  Mon- 
roe, 48;  2  Bl.  Com.  (Cooley's  ed.)  128,  n.  9.  See  Malone  v. 
McLaurin,  40  Miss.  141  (90  Am.  Dec.  320)  ;  Bogy  v.  Roberts, 
48  Ark.  17  (2  S.  W.  186;  3  Am.  St.  Rep.  211) ;  Jackson  v. 
Johnson,  5  Cowen  (]ST.  Y.),  74  (15  Am.  Dec.  433,  and  note) ; 
1  Washh.  R.  P.,  182;  4  Kent  Com.  30;  2  Min.  Ins.  (4th  ed.) 
124.1 

been,  "that  would  not  have  given  his  vendor  the  right  to  re-enter 
and  take  possession  until  he  had  reasonable  notice  and  oppor- 
tunity to  redeem  his  default."  See  §  67,  supra,  and  cases  cited. 
From  this  dictum  it  might  be  inferred  that  if  the  notice  had  been 
given,  and  the  default  had  continued,  then  the  right  of  the  hus- 
band to  recover  the  land  (though  not  exercised  during  his  life) 
would  entitle  his  widow  to  dower  therein.  But  if  this  be  so,  yet 
it  is  not  believed  that  such  a  right,  once  accrued  to  the  husband 
during  coverture,  would  render  the  widow  dowable  at  his  death, 
notwithstanding  the  fact  that  the  purchaser  had  afterwards  paid 
the  husband  in  full  for  the  land,  and  received  from  him  a  deed 
of  conveyance. 

1  Seisin  Required  in  Kentucky  for  Curtesy. — As  to  wild  lands, 
it  is  said  by  the  Supreme  Court  of  the  United  States  in  Davis  v. 
Mason,  1  Pet.  503,  506  (a  case  which  came  up  from  Kentucky)  : 
"It  is  believed  that  the  rigid  rules  of  the  common  law  have  never 
been  applied  to  a  wife's  estate  in  lands  of  this  description.  In 
the  State  of  New  York  (8  Johns.  Rep.  271),  these  rules  have 
been  solemnly  repelled;  and  we  know  of  no  adjudged  case  in  any 
of  the  States  in  which  they  have  been  recognized  as  applicable. 
It  would  indeed  be  idle  to  compel  an  heir  or  purchaser  to  find 
his  way,  through   pathless   deserts,  into  lands   still  overrun  by 


462  REAL    PROPERTY.  [Chap.  14 

§  291.  Dower  When  the  Husband  is  a  Joint  Tenant  or  Ten- 
ant by  Entireties. — At  common  law  the  wife  had  no  dower  in 
land  of  which  the  husband  was  jointly  seised  with  a  third 

the  aborigines,  in  order  to  'break  a  twig'  or  'turn  a  sod,'  or  'read 
a  deed,'  before  he  could  acquire  a  legal  freehold.  It  may  be  very 
safely  asserted  that  had  a  similar  state  of  things  existed  in  Eng- 
land when  the  Conqueror  introduced  this  tenure,  the  necessity  of 
actual  seisin,  as  an  incident  to  the  husband's  right,  would  have 
never  found  its  way  across  the  Channel." 

In  Davis  v.  Mason,  supra  (decided  in  1828),  the  Supreme  Court 
of  the  United  States  professed  to  follow  the  law  of  Kentucky 
as  to  the  seisin  required  for  curtesy.  But  in  Neely  v.  Butler, 
10  B.  Mon.  48  (decided  in  1849),  the  Supreme  Court  of  Kentucky 
rejected  the  view  which  had  been  taken  by  the  Supreme  Court 
of  the  United  States  as  to  the  law  of  that  State,  and  held  that 
actual  seisin  was  necessary  to  the  husband's  curtesy  even  in 
wild  lands.  (See  above  in  text.)  The  general  doctrine  of  Ken- 
tucky is  thus  laid  down  by  Bennett,  J.,  in  Sweeney  v.  Mont- 
gomery, 85  Ky.  55  (2  S.  W.  562) :  "It  is  well  settled  by  repeated 
decisions  of  this  court  that  a  husband  is  not  entitled  to  curtesy 
in  the  real  estate  of  his  deceased  wife  unless  he  has  acquired 
the  actual  possession  of  such  estate  during  her  life.  It  is  re- 
quired of  the  husband  to  take  actual  possession  of  his  wife's  land 
as  a  condition  precedent  to  his  right  of  curtesy  therein,  for  the 
purpose  of  strengthening  her  title  to  it,  and  to  protect  it  from 
intrusion  and  hostile  possession,  which  might,  by  its  continuance, 
endanger  her  title.  This  being  the  reason  of  the  rule,  whenever 
its  equivalent  is  complied  with,  the  rule  is  complied  with.  For 
instance,  if  the  guardian  of  the  wife  holds  the  possession  of 
her  land  at  the  time  of  her  death,  then  the  reason  of  the  rule 
is  complied  with,  and  the  husband  is  entitled  to  curtesy  in  the 
land;  and  if  a  joint  tenant  with  the  wife  [where  the  right  of 
survivorship  has  been  abolished]  holds  the  friendly  possession 
of  the  land  at  the  time  of  her  death,  here  his  possession  is  her 
possession,  and  the  reason  of  the  rule  is  complied  with.  So  if 
a  trustee  of  the  wife  holds  the  possession  of  the  land  for  the 
wife  at  the  time  of  her  death,  here  also  the  reason  of  the  rule 
is  complied  with,  and  the  husband  is  entitled  to  curtesy.  Indeed, 
if  any  person  at  the  death  of  the  wife  is  seised  of  her  land  for 
her  use,  the  reason  of  the  rule  is  complied  with,  and  the  husband 
is  entitled  to  curtesy."  See  also  Ellis  v.  Dittey,  94  Ky.  620  (23 
S.  W.  366). 


§  291]  DOWER    AND    CURTESY.  463 

person;  for,  on  the  husband's  death,  the  land  belonged  to  the 
surviving  joint  tenant  by  the  jus  accrescendi,  which  as  has 
been  shown,  was  paramount  to  dower.  See  §  150,  supra;  also 
§§  286,  287.  But  now  in  Virginia  there  is  dower  in  land  of 
which  the  husband  is  seised  jointly  with  another  who  survives 
him,  the  jus  accrescendi  being  abolished  by  statute  (§  151, 
supra).1 

1  No  Dower  at  Common  Law  when  Husband  Joint  Tenant 
with  a  Third  Person. — In  Babbitt  v.  Day,  41  N.  J.  Eq.  392  (5 
Atl.  275),  the  law  is  thus  laid  down  by  Runyon,  Ch.:  "By  the 
common  law  no  title  of  dower  attaches  where  the  husband  is 
seised  of  the  land  jointly  with  another  or  others.  This  is  owing 
to  the  nature  of  the  estate  of  joint  tenants.  The  possibility,  so 
long  as  the  joint  ownership  subsists,  that  the  estate  of  each 
tenant  may  be  wholly  defeated  by  the  possibility  of  his  dying 
in  the  lifetime  of  the  other,  or  others,  prevents  the  attaching 
of  the  right  of  dower  in  the  wives  of  any  of  the  tenants  except 
the  survivor.  The  estate  which  the  husband  must  have  to  en- 
title his  wife  to  dower  is  one  in  severalty  or  in  common  [or  in 
coparcenary.]  The  unity  of  interset  in  joint  tenancies  (each  ten- 
ant is  seised  per  my  et  per  tout)  prevents  the  admission  of 
a  right  of  dower  or  curtesy  except  as  to  the  estate  of  the  sur- 
vivor. On  the  decease  of  one  joint  tenant  the  survivor  holds  the 
whole  property  under  and  by  virtue  of  the  original  grant,  and 
holds  no  part  of  it  in  any  wise  under  the  decedent.  2  Cruise, 
Dig.  444.  We  have  not  in  this  State  changed  the  law  in  respect 
to  dower  in  such  estates  either  by  statute  or  legal  adjudication." 

Not  only  has  the  wife  at  common  law  no  dower  when  the  hus- 
band is  at  his  death  joint  tenant  of  land  with  another  who  sur- 
vives him,  but  she  is  even  denied  dower  when  the  husband  con- 
veys during  the  coverture  the  land  to  a  third  person,  thereby 
severing  the  joint  tenancy.  This  is  held  in  Mayburry  v.  Brien, 
15  Peters,  21,  and  the  reason  is  said  to  be  that  the  husband's 
interest  was  divested  and  passed  to  the  alienee  eo  instanti  that 
it  became  dissevered  from  that  of  his  joint  tenant.  1  Bishop, 
Mar.  Worn.  §  305.  This  doctrine  is  well  settled,  but  is  disap- 
proved in  1  Scribner,  Dower  (2d  ed.)  336,  where  it  is  said: 
"As  against  the  survivor  [i.  e.,  the  surviving  joint  tenant],  it 
is  plain  that  there  can  be  no  dower,  because  from  the  very  nature 
of  the  estate,  and  by  virtue  of  the  original  grant,  the  entire  in- 
terest becomes  absolutely  vested  in  him  on  the  death  of  the  co- 


464  REAL    PROPERTY.  [Chap.  14 

Nor  was  there  dower  at  common  law  when  husband  and 
wife  were  tenants  by  entireties,  but  on  the  death  of  the 
husband  the  whole  land  belonged  to  the  wife.  §  151,  supra. 
The  right  of  survivorship,  however,  between  tenants  by  en- 
tireties was  abolished  in  Virginia  by  statute  taking  effect 
July  1,  1850  (§§  153,  151,  supra),  and  from  that  time  until 
May  1,  1888,  there  was  dower  in  the  husband's  moiety  when 
husband  and  wife  were  tenants  by  entireties,  and  the  wife 
survived  her  husband.  But  by  the  Code  of  1887  (taking 
effect  May  1,  1888),  tenancy  by  entireties  was  abolished  in 
Virginia.  §  153,  supra,  and  note.  For  full  discussion  of 
tenancy  by  entireties,  see  18  Am.  Dec.  377-389,  note  to 
Den.  v.  Hardenbergh,  10  K  J.  Law,  42. 

The  law  as  above  laid  down  as  to  dower  in  joint  estates 
and  tenancies  by  entireties  is,  mutatis  mutandis,  also  appli- 
cable to  curtesy.     1  Bishop,  Mar.  Worn.  §  503. 

We  shall  now  proceed  to  consider  Dower  and  Curtesy  sep- 

tenant.  The  rule,  however,  as  established  goes  much  further 
than  this,  and  not  only  denies  dower  against  the  survivor,  but 
absolutely  precludes  it  from  attaching  during  the  existence  of 
the  joint  estate.  .  .  .  One  consequence  resulting  from  this 
rule  is  that  if  the  husband  sever  the  joint  estate  by  conveying 
his  share  to  a  third  person,  the  right  of  dower  is  thereby  en- 
tirely defeated.  Ordinarily  any  act  which  determines  the  joint 
tenancy  during  the  lifetime  of  the  husband  entitles  the  wife 
to  dower;  but  it  is  held  that  where  the  joint  estate  is  severed  by 
the  alienation  of  the  husband,  the  sole  seisin  acquired  by  him 
by  virtue  of  the  conveyance  in  instantaneous  only,  and  passes 
from  him  by  the  same  act  by  which  he  acquired  it;  and,  there- 
fore, that  no  right  of  dower  attaches.  Had  a  contrary  doctrine 
prevailed,  and  dower  been  held  to  attach  upon  the  joint  estate, 
subject  to  be  defeated  only  by  survivorship,  then  upon  the  de- 
termination of  the  joint  tenancy  by  the  alienation  of  the  hus- 
band, and  the  consequent  destruction  of  the  possibility  of  sur- 
vivorship, the  right  of  the  wife  would  have  become  fixed,  liable 
only  to  be  defeated  by  her  own  act,  or  by  her  decease  in  the  life- 
time of  her  husband."  Of  course,  the  modern  statutes  abolishing 
the  jus  accrescendi  between  joint  tenants  does  away  with  the 
injustice  done  the  wife  by  denying  her  dower  in  the  case  put. 


§§291,292]  DOWER    AND    CURTESY.  465 

arately,  though  in  some  instances  the  same  doctrines  apply 
to  both  estates. 

I.    Doiver. 
§  292.    Bower  in  Equitable  Estates. 

(1)  At  common  law  there  was  neither  dower  nor  curtesy 
in  uses;  but  after  the  Statute  of  Uses,  curtesy  was  allowed 
in  such  unexecuted  uses  as  became  trusts  (see  §  114,  supra), 
but  the  dower  was  denied.  This  discrimination  against  dower 
was  not  based  on  any  legal  principle,  but  on  practical  con- 
siderations of  expediency,  as  is  explained  in  the  note.1 

1  Dower  Denied  in  Trusts. — In  D'Arcy  v.  Blake,  2  Sch.  &  Lef. 
387,  388,  Lord  Redesdale  gives  this  explanation,  which  has  met 
with  general  acceptance,  of  the  anomalous  distinction  between 
dower  and  curtesy  in  trusts: 

"The  difficulty  in  which  the  courts  of  equity  have  been  in- 
volved with  respect  to  dower,  I  apprehend,  originally  arose  thus. 
They  had  assumed,  as  a  principle  in  acting  on  trusts,  to  follow 
the  law;  and,  according  to  this  principle,  they  ought,  in  all 
cases  where  rights  attached  on  legal  estates,  to  have  attached 
the  same  rights  upon  trusts,  and  consequently  to  have  given 
dower  of  an  equitable  estate.  It  was  found,  however,  that  in 
cases  of  dower,  this  principle,  if  pursued  to  the  utmost,  would 
affect  the  titles  to  a  large  proportion  of  the  estates  in  the  coun- 
try; for  that  parties  had  been  acting,  on  the  footing  of  dower, 
on  a  contrary  principle,  and  had  supposed  that  by  the  creation 
of  a  trust  the  right  of  dower  would  be  prevented  from  attaching. 
Many  persons  had  purchased  under  this  idea,  and  the  country 
would  have  been  thrown  into  the  utmost  confusion  if  courts  of 
equity  had  followed  their  general  rule,  with  respect  to  trusts, 
in  cases  of  dower.  But  the  same  objection  did  not  apply  to  ten- 
ancy by  the  curtesy,  for  no  person  would  purchase  an  estate  sub- 
ject to  tenancy  by  the  curtesy  without  the  concurrence  of  the 
person  in  whom  the  right  vested.  .  .  .  Pending  the  coverture, 
a  woman  could  not  alien  without  her  husband,  and  therefore 
nothing  she  could  do  could  be  understood  by  a  purchaser  to  affect 
his  interest;  but  where  the  husband  was  seised,  or  entitled  in 
his  own  right,  he  had  full  power  of  disposing,  except  so  far  as 
dower  might  attach.  And  the  general  opinion  having  long  been 
that  dower  was  a  mere  legal   right,  and  that  as  the  existence 

30 


466 


REAL    PROPERTY.  [Chap.  14 


(2)  In  England,  by  the  Act  of  1833  (as  to  women  mar- 
ried since  January  1,  1834),  dower  is  allowed  in  all  equitable 
estates.  3  &  4  Will.  IV.,  c.  105,  §  2.  The  language  of  the 
English  statute  is  as  follows:  "When  a  husband  shall  die 
beneficially  entitled  to  any  land  for  an  interest  which  shall 
not  entitle  the  widow  to  dower  out  of  the  same  at  law,  and 
such  interest,  whether  wholly  equitable,  or  partly  legal  and 
partly  equitable,  shall  be  an  estate  of  inheritance  in  posses- 
sion, or  equal  to  an  estate  of  inheritance  in  possession  (other 
than  an  estate  in  joint  tenancy),  then  his  widow  shall  be 
entitled  in  equity  to  dower  out  of  the  same  land."  See  1 
Scribner  Dower  399,  and  665,  Appendix.1 

of  a  trust  estate  previously  created  prevented  the  right  of  dower 
from  attaching  at  law,  it  would  also  prevent  [protect]  the  prop- 
erty from  all  claim  to  dower  in  equity,  and  many  titles  depend- 
ing on  this  opinion,  it  was  found  that  it  would  be  mischievous  in 
this  instance  to  [adhere  to]  the  general  principle  that  equity 
should  follow  the  law;  and  it  has  been  so  long  and  so  clearly 
settled  that  a  woman  should  not  have  dower  in  equity  who  is  not 
entitled  at  law  that  it  would  be  shaking  everything  to  attempt 
to  disturb  the  rule."  See  Smith  v.  Adams,  5  De  G.,  McN.  &  G. 
712,  720;  1  Scribner,  Dower  (2d  ed.)  398;  2  Min.  Ins.  (4th  ed.) 
125. 

1  Dower  under  the  English  Statute  of  1833. — The  following 
account  of  the  effect  of  the  Act  of  3  &  4  Will.  IV.,  c.  105,  on 
Dower,  is  taken  from  Williams,  Real  Prop.  (5th  Am.  ed.)  236: 
"With  regard  to  women  married  since  the  1st  of  January,  1834, 
the  doctrine  of  jointures  is  of  very  little  moment.  For  by  the  act 
of  the  amendment  of  the  law  relating  to  dower,  the  dower  of  such 
women  has  been  placed  completely  within  the  power  of  their 
husbands.  Under  the  act,  no  widow  is  entitled  to  dower  out  of 
any  land  which  shall  have  been  absolutely  disposed  of  by  her 
husband  in  his  lifetime,  or  by  his  will.  .  .  .  The  husband 
may  also,  either  wholly  or  partially,  deprive  his  wife  of  her  right 
to  dower  by  any  declaration  for  that  purpose,  made  by  him  by 
any  deed,  or  by  his  will.  As  some  small  compensation  for  these 
sacrifices,  the  act  has  granted  a  right  of  dower  out  of  lands  to 
which  the  husband  had  a  right  merely,  without  having  had  even 
a  legal  seisin;  dower  is  also  extended  to  equitable  as  well  as 
legal  estates  of  inheritance  in  possession  except,  of  course,   es- 


§§292,293]  DOWER    AND    CURTESY.  467 

§  293.  Dower  in  Equitable  Estates  in  the  United  States. — 
In  1  Seribner  on  Dower  (2d  ed.),  p.  400,  it  is  said:  "In 
some  States  the  rule  of  the  common  law  excluding  dower 
from  the  estate  of  the  cestui  que  trust  prevails.  With  the 
exception  of  Pennsylvania,  this  is  supposed  to  be  the  case 
in  all  those  States  where  that  rule  is  not  changed  by  statute. 
The  following  named  States  may  be  embraced  in  this  class : 
Massachusetts,  Maine,  New  Hampshire,  Connecticut,  Ver- 
mont, Georgia,  Florida,  Minnesota,  Michigan,  South  Carolina, 
Wisconsin,  Oregon,  Delaware,  and  Arkansas.  In  the  District 
of  Columbia,  also,  before  the  Eevised  Code,  the  common  law 
was  held  to  be  in  force.  But  in  many  of  the  States  the  rule 
of  the  common  law  in  this  particular  is  greatly  changed,  and 
in  others  it  is  entirely  abrogated.  Thus  where  the  equity  of 
the  husband  is  perfect  and  complete,  and  his  interest  is  of 
such  character  that  if  it  were  a  legal  estate  it  would  be  sub- 
ject to  dower  at  common  law,  the  right  of  the  widow  to  be 
endowed  thereof  is  recognized  in  the  following  States :  Vir- 
ginia, Kentucky,  New  Jersey,  Pennsylvania,  Alabama,  and 
Mississippi.  Under  the  present  statute  the  rule  is  the  same 
in  the  District  of  Columbia.  So  in  New  York,  Maryland, 
North  Carolina,  Ohio,  Indiana,  Illinois,  Iowa,  Ehode  Island, 
Tennessee,  Missouri,  and  Kansas,  dower  is  allowed  in  equi- 
table estates.  And  it  is  not  required  in  all  of  these  States 
that  the  equity  of  the  husband  shall  be  complete,  but  in  some 
of  them  the  widow  may  claim  dower,  subject  to  prior  equities 
or  encumbrances,  to  the  extent  of  the  actual  interest  of  the 
husband  in  the  lands  at  the  time  of  his  death."  See,  also, 
1  Washb.  Real  Prop.  (5th  ed.)  161,  163;  4  Kent.  Com.  (13th 
ed.)  44;  1  Bishop,  Mar.  Worn.  §  285;  10  Am.  &  Eng.  Ency. 

tates  in  joint  tenancy.  The  effect  of  the  act  is  evidently  to  de- 
prive the  wife  of  her  dower  except  as  against  the  husband's  heir 
at  law.  If  the  husband  should  die  intestate,  and  possessed  of 
any  lands,  the  wife's  dower  out  of  such  lands  is  still  left  for  her 
support — unless  indeed  the  husband  should  have  executed  a 
declaration  to  the  contrary." 


468  REAL    PROPERTY.  [Chap.  14 

Law   (2d  ed.)    162,  n.  2;  1  Stimson,  Am.  Statute  Law,  § 

3212.1 

For  discussion  of  the  general  doctrine  in  the  United  States 
that  there  is  no  dower  in  an  equitable  estate  unless  the  hus- 
band dies  possessed  thereof,  so  that  an  alienee  by  the  hus- 
band's sole  deed  takes  a  title  paramount  to  dower,  see  1  Scrib- 
ner,  Dower,  442;  10  Am.  &  Eng.  Ency.  Law,  163,  note  1. 
And  see  Smallridge  v.  Hazlett  (Ky.)  66  S.  W.  1043;  Rab- 
bitt  v.  Gaither,  67  Md.  94  (8  Atl.  744)  ;  McRae  v.  McRae, 
78  Md.  270  (27  Atl.  1038).  For  contrary  doctrine  in  Vir- 
ginia, see  §  294,  infra  and  note.2 

1  Dower  in  Equitable  Estates  in  the  United  States. — In  the 
above  enumeration  of  States,  Arkansas,  Connecticut  and  New 
Hampshire  are  named  as  States  in  which  the  common  law  rule 
excluding  dower  from  the  estate  of  the  cestui  que  trust  prevails. 
And  see  1  Scribner,  Dower,  p.  414.  But  it  seems  that  the  rule 
in  them  in  now  otherwise.  See  Eirby  v.  Van  Treece,  26  Ark.  368; 
Hall  v.  Hall,  70  N.  H.  47  (47  Atl.  79);  Greene  v.  Huntington,  73 
Conn.  106  (46  Atl.  883).  For  recent  cases  as  to  dower  in  equitable 
estates,  see  Everitt  v.  Everitt,  71  la.  221  (32  N.  W.  273) ;  Tink  v. 
Walker,  148  111.  234  (35  N.  E.  765);  Stephens  v.  Leonard,  122 
Mich.  125  (80  N.  W.  1002);  Askew  v.  Askew,  103  N.  C.  285 
(9  S.  E.  646)  ;  In  re  Ames,  22  R.  I.  54  (46  Atl.  47). 

2  Dower  When  Husband  Rescinds  His  Contract  of  Purchase. 
— Under  the  general  rule  which  denies  dower  to  the  widow  of  a 
purchaser  of  land  under  an  executory  contract  unless  his  equity 
at  his  death  be  complete,  it  would  seem  to  follow  necessarily  that, 
until  the  full  payment  of  the  purchase  money  no  dower  right 
could  attach,  and  a  rescission  of  the  contract  would  effectually 
and  finally  defeat  dower.  This  seems  to  have  been  the  ground 
of  the  decision  on  this  point  in  Wheatley  v.  Calhoun,  12  Leigh 
(Va.)  264,  277,  where  it  is  said:  "The  appellee  [widow  of  Cal- 
houn] is  not  entitled  to  dower  in  the  221  acres  of  land  her  hus- 
band contracted  to  purchase  of  Wheatley  by  the  articles  of  Oc- 
tober, 1822,  the  contract  therefor  never  having  been  carried  into 
effect,  and  the  same  having  been  rescinded  and  abandoned  while 
it  was  yet  wholly  executory,  and  before  the  payment  of  the  pur- 
chase money  was  completed,  or  the  legal  or  equitable  posses- 
sion of  the  seisin  of  the  land  acquired  by  the  purchaser."  And 
it  was  held  that  1  Rev.  Code,  ch.  99,  §  31   (now  §  2429  of  Code 


§293]  DOWER    AND    CURTESY.  469 

For  discussion  of  the  doctrine  in  many  of  the  States  that 
there  is  no  dower  in  an  equitable  estate  unless  it  is  "perfect" 

1887,  set  out  in  full  in  §  294,  infra)  did  not  give  the  purchaser's 
widow  dower  under  these  circumstances. 

The  general  rule,  also,  which  denies  dower  in  an  equitable  es- 
tate unless  the  husband  dies  entitled  thereto  would  seem  also  to 
enable  him,  though  the  equity  had  become  complete,  to  defeat  the 
widow's  dower  therein  by  a  rescission  in  his  lifetime.  Thus  in 
1  Scribner,  Dower,  p.  444,  it  is  said:  "The  rule  which  permits 
the  husband  to  alienate  his  equity  free  from  incumbrance  of 
dower  also  permits  him  to  agree  to  a  rescission  of  the  contract." 
For  this  Wheatley  v.  Calhoun,  supra,  is  cited  (though  the  ground 
of  the  decision  seems  to  have  been  the  incompleteness  of  the 
equity),  and  Owen  v.  Robbins,  19  111.  549,  where  it  is  said:  "The 
contract  until  it  is  executed  is  only  inchoate,  and  may  be  can- 
celled by  the  parties;  or  like  any  chose  in  action  may  be  assigned 
so  as  to  pass  the  equitable  interest  in  the  agreement  to  the  as- 
signee. We  have  been  unable  to  find  any  case  which  holds  that 
the  widow  is  dowable  of  lands  where  the  husband  has  assigned 
a  contract  of  purchase." 

Wheatley  v.  Calhoun,  supra,  was  decided  in  1841,  when  the  law 
of  Virginia  had  not  been  settled,  either  as  to  the  doctrine  of 
"complete  equity,"  or  as  to  the  effect  of  the  husband's  assign- 
ment of  his  contract  of  purchase.  But  as  is  stated  in  §  293,  and 
as  is  more  fully  shown  in  §  294  infra,  it  is  now  held  in  James  v. 
Upton,  96  Va.  296  (decided  in  1898)  that  the  purchaser's  equity 
need  not  be  complete  to  entitle  his  widow  to  dower,  nor  will  an 
assignment  of  his  contract  of  purchase  defeat  her  dower.  And 
this  is  held  upon  the  construction  of  the  very  statute  (now  § 
2429  of  the  Code),  which  was  held  in  Wheatley  v.  Calhoun,  supra, 
not  to  prevent  rescission  of  the  contract  while  the  equity  re- 
mained incomplete. 

The  question  arises,  under  the  Virginia  law  as  now  construed: 
does  the  rescission  of  a  contract  of  purchase  defeat  the  dower 
of  the  purchaser's  widow?  Since  in  this  State  the  husband  can- 
not defeat  his  wife's  dower  in  such  equity,  though  he  assigns  it 
while  incomplete  to  a  purchaser  for  value,  unless  she  unites  in 
the  deed,  and  as  both  the  grounds  on  which  rescission  has  been 
held  to  prevent  the  attachment  of  dower  thus  fail  in  Virginia, 
it  may  be  contended  that  the  widow  can  claim  her  dower  in  spite 
of  her  husband's  rescission  It  is  believed,  however,  that  Wheat- 
ley  v.  Calhoun  (which  is  not  referred  to  in  James  v.  Upton)  is 
still  law  in  Virginia;    and  that  it  was  not  intended  by   §   2429 


470  REAL    PROPERTY.  [Chap.  14 

or  "complete"  during  the  coverture,  see  1  Scribner,  Dower, 
pp.  436-442;  10  Am.  &  Eng.  Ency.  Law  (2d  ed.)  104.  And 
see  Walters  v.  Walters,  132  111.  467  (23  K  E.  1120)  ;  Tinh 
v.  Walker,  148  111.  234  (35  N".  E.  765) ;  Howell  v.  Jump, 
140  Mo.  441  (415  S.  W.  976).  For  contrary  doctrine  in 
Virginia  see  §  294,  infra,  and  note. 

§  294.  Dower  in  Equitable  Estates  in  Virginia. — In  Vir- 
ginia, dower  was  given  in  equitable  cases  by  the  Act  of  1785, 
c.  Q2  (12  Hen.  Stat.  157;  1  Eev.  Code  Va.  370),  taking  effect 
January  1,  1787.  This  is  the  first  statute  giving  dower  in 
equitable  estates  adopted  in  the  United  States  (1  Scribner, 
Dower,  403) ;  and,  as  it  appears  in  Code  of  Va.  (1887)  § 
2429,  it  reads  as  follows :  "Where  a  person  to  whose  use,  or 
in  trust  for  whose  benefit,  another  is  seised  of  real  estate, 
has  such  inheritance  in  the  use  or  trust  as,  if  it  were  a  legal 
right,  would  entitle  such  persons'  husband  or  wife  to  curtesy 
or  dower  thereof,  such  husband  or  wife  shall  have  curtesy  or 
dower  of  the  said  estate."  See  Claiborne  v.  Henderson,  3 
H.  &  M.  322. 

On  December  6,  1792,  dower  in  equitable  estates  was  also 
conferred  by  §  1  of  "An  act  to  reduce  into  one  all  acts  and 

of  the  Code,  nor  by  §  2269  (as  to  which  see  §  294,  infra),  to 
prevent  the  exercise  by  a  husband  of  the  right  of  rescission  of 
an  executory  agreement  to  purchase  land.  While  her  dower  right 
is  contingent,  this  is  a  risk  which  it  must  run.  Nor  does  it  fol- 
low that  because  the  husband  cannot,  as  held  in  James  v.  Upton, 
supra,  defeat  his  widow's  dower  by  assignment  of  his  contract 
of  purchase,  that  therefore  he  cannot  destroy  her  contingent 
dower  by  rescission.  After  an  assignment,  the  contract  remains 
in  existence,  and  is  only  transferred  to  another;  and  the  widow 
(who  has  not  united  in  the  transfer)  claims  dower  in  the  equity 
created  thereby,  as  she  would  in  any  other  equitable  estate  of 
which  her  husband  was  possessed  during  the  coverture;  but  after 
rescission,  the  contract  is  at  an  end,  and  the  equity  it  created 
ceases  to  exist.  To  allow  a  wife  to  prevent  rescission  by  con- 
ferring on  her  an  indefeasible  right  of  dower  by  virtue  of  the 
executory  contract  of  her  husband  would  seem  against  public 
policy,  and  injurious  to  the  best  interests  of  all  concerned  in  the 
transaction. 


§§293,294]  DOWER    AND    CURTESY.  471 

parts  of  acts  relating  to  dower,"  which,  as  re-enacted  in  the 
Code  of  1887,  §  2267,  reads  as  follows:  "A  widow  shall 
be  endowed  of  one-third  of  all  the  real  estate  whereof  her 
husband,  or  any  other  to  his  use,  was,  at  an}'  time  during 
the  coverture,  seised  of  an  estate  of  inheritance,  unless  her 
right  to  such  dower  shall  have  been  lawfully  barred  or  relin- 
quished." 

The  above  statutes  have  been  held  in  Virginia  to  entitle 
a  widow  to  dower  in  her  husband's  equitable  estate  of  which 
he  was  possessed  during  the  coverture,  whether  by  way  of 
express  or  merely  constructive  trust;  and  in  the  latter  case 
(as  when  the  husband  contracts  to  buy  land),  whether  or 
not  the  trust  is  complete  at  his  death  by  full  payment  of  the 
purchase-money.  Dower  also  under  these  statutes  attaches 
to  equitable  estates  to  which  the  husband  was  entitled  during 
the  coverture,  although  alienated  by  him  in  his  lifetime,  so 
that  he  does  not  die  possessed  thereof.1     The  statutes  are 

1  Dower  in  Equitable  Estates  in  Virginia. — As  is  stated  above, 
it  is  settled  under  the  Virginia  statutes,  contrary  to  the  general 
rule  in  the  United  States  (see  §  293,  supra),  that  it  is  not  neces- 
sary, in  order  to  entitle  the  widow  to  dower  in  her  husband's 
equitable  estate  of  inheritance,  either  (1)  that  his  equity  should 
be  "complete"  or  "perfect";  or  (2)  that  he  should  die  entitled 
thereto,  if  he  was  possessed  thereof  during  the  coverture,  and 
disposed  of  it  in  his  lifetime  without  the  wife's  concurrence. 

Thus  in  James  v.  Upton,  supra,  it  is  said:  "We  are  of  opinion, 
therefore,  that  a  husband  who  enters  into  an  agreement  for  the 
purchase  of  land,  takes  possession  of  it  and  pays  part  of  the  pur- 
chase price,  is  beneficially  seised  of  the  land  to  the  extent  that 
he  has  paid  the  purchase  price,  although  he  has  not  acquired  the 
legal  title;  and  that  his  widow  is  entitled  to  dower  in  the  land, 
subject  to  the  lien  on  it  for  the  unpaid  purchase  price,  whether 
he  die  possessed  of  the  land,  or  has  aliened  it  during  the  cover- 
ture without  her  concurrence   in  the  mode  prescribed  by  law." 

This  decision  is  placed  entirely  on  §  2429  of  the  Code  of  Va., 
quoted  above  in  §  294.  But  as  to  the  right  of  a  widow  to  dower 
in  an  equitable  estate  of  the  husband,  as  against  an  alienee  of 
the  husband  claiming  under  a  deed  in  which  she  did  not  join, 
this  would   seem   to  be   clear  under  Code  of  Va.   §   2267    (also 


472  REAL    PROPERTY.  [Chap.  14 

also  held  to  confer  a  right  of  dower  on  the  widow  of  a  mort- 
gagor in  the  equity  of  redemption  when  the  mortgage  is 
paramount  to  the  dower  in  the  land.    Heth  v.  Cocke,  1  Eand. 

quoted  in  §  264  above)  which  declares  in  terms  that,  "a  widow 
shall  be  endowed  of  one-third  of  all  the  real  estate  whereof  her 
husband,  or  any  other  to  his  use,  was,  at  any  time  during  the 
coverture,  seised  of  an  estate  of  inheritance,  unless  her  right  to 
such  dower  shall  have  been  lawfully  barred  or  relinquished."  For 
the  doctrine  of  constructive  trust  in  favor  of  the  purchaser  of 
land,  who  has  not  received  a  conveyance,  see  2  Story,  Eq.  Jur. 
§  1212;  Bisph.  Eq.  §  95;  1  Bishop,  Mar.  Worn.  §  281. 

As  to  the  husband's  entry  into  possession  of  land  purchased 
(which  was  a  fact  in  James  v.  Upton,  supra),  it  would  seem  that 
this  is  immaterial  except  where,  in  the  absence  of  a  written  con- 
tract, it  becomes  necessary,  in  order  to  render  the  contract  bind- 
ing, to  rely  upon  the  doctrine  of  part  performance  of  the  verbal 
contract — a  doctrine  which  in  the  case  of  sales  of  land  is  still 
recognized  in  Virginia  as  between  the  parties;  though  by  Code 
Va.  1887,  §  2463,  taking  effect  May  1,  1888,  such  a  verbal  contract, 
if  made  "for  the  conveyance  or  sale  of  real  estate,  or  a  term 
therein  of  more  than  five  years,"  is  declared  "void,  both  at  law 
and  in  equity,  as  to  purchasers  for  valuable  consideration  with- 
out notice,  and  creditors."     See  1  Va.  Law  Reg.  682,  note. 

It  is  the  general  doctrine  that  equity  will  enforce  by  specific 
performance  a  verbal  gift  of  land,  when  by  virtue  of  such  gift 
the  donee  is  induced  to  enter  on  the  land  and  make  improvements. 
See  Neale  v.  Neales,  9  Wall  1;  Burkholder  v.  Ludlam,  30  -Graft. 
(Va.)  255;  Halsey  v.  Peters,  79  Va.  60;  Dozier  v.  Matson,  94  Mo. 
328  (7  S.  W.  268).  And  in  Young  v.  Young,  45  N.  J.  Eq.  27  (16 
Atl.  921),  it  is  held  that,  under  such  circumstances,  the  widow 
of  the  donee  is  entitled  to  dower.  But  now  in  Virginia,  by  Code 
of  1887,  §  2413  (taking  effect  May  1,  1888),  the  doctrine  of  equity 
as  laid  down  above  as  to  verbal  gifts  of  land  is  abrogated,  the 
statute  declaring:  "Nor  shall  any  right  to  a  conveyance  of  such 
estate  or  term  in  land  [i.  e.,  "estate  of  inheritance  or  freehold, 
or  for  a  term  of  more  than  five  years"]  accrue  to  the  donee  of  the 
land,  or  those  claiming  under  him,  under  a  gift  or  promise  of 
gift  of  the  same  hereafter  made  and  not  in  writing,  although 
such  gift  or  promise  be  followed  by  possession  thereunder,  and 
improvement  of  the  land  by  the  donee  or  those  claiming  under 
him."  See  Report  Va.  State  Bar  Ass'n,  1891,  Address  of  Judge 
Burks,  pp.   116,  117. 


§§294,295]  DOWER    AND    CURTESY.  473 

(Va.)   344;  Wilson  v.  Davisson,  2  Bob.   (Va.)   384;  James 
v.  Upton,  96  Ya.  296  (31  S.  E.  255). 

§  295.  What  Ownership  of  the  Husband  Entitles  the  Wife 
to  Dower. 

(1)  The  ownership  of  the  husband  must  be  beneficial,  and 
not  merely  of  a  naked  legal  title  in  trust  for  another.  Hence 
if  the  husband  is  a  mere  trustee  or  a  mortgagee  his  widow 
is  not  dowable.  1  Bishop,  Mar.  Worn.  §  278;  1  Scribner, 
Dower,  409,  477;  McKneely  v.  Terry,  61  Ark.  527  (33 
S.  W.  953)  ;  King  v.  Bushnell,  121  111.  656  (13  N.  E.  245)  ; 
McDaniel  v.  Large,  55  la.  312  (7  N.  W.  632);  Miller  v. 
Miller,  148  Mo.  113  (49  S.  W.  852)  ;  Pruitt  v.  Pruitt,  57 
S.  C.  155  (35  S.  E.  485). * 

1  Widow  of  Trustee  not  Entitled  to  Dower, — In  1  Scribner, 
Dower,  591,  it  is  said:  "Upon  this  principle,  if  a  man  make  a 
contract  for  the  sale  of  his  land,  and  afterwards,  and  before  con- 
veyance made,  marry,  he  is  regarded  in  equity  as  a  trustee  for 
the  purchaser;  and  if  the  conveyance  be  made  during  the  cover- 
ture in  execution  of  the  contract,  the  purchaser  takes  the  estate 
discharged  of  dower.  The  rule  is  the  same  if  the  husband  die 
without  having  conveyed  the  land,  and  a  specific  performance  of 
the  contract  is  enforced  against  his  heirs."  See  1  Bishop,  Mar. 
Worn.  279;   10  Am.  &  Eng.  Ency.  Law  132. 

Thus  in  Chapman  v.  Chapman,  92  Va.  537,  it  is  held  that  the 
widow  of  the  vendor  of  real  estate  is  not  entitled  to  dower  in 
the  lands  of  the  husband  of  which  he  was  seised  during  the  cover- 
ture when  it  appears  that  the  husband  sold  the  land  before  mar- 
riage, put  the  vendee  in  possession  and  received  part  of  the  pur- 
chase money,  and  after  the  marriage,  on  the  receipt  of  the  resi- 
due of  the  purchase  money  (as  the  court  presumed),  conveyed 
the  land  to  the  vendee  by  his  sole  deed.  And  in  Burcline  v. 
Burdine,  98  Va.  515,  523,  the  court  says:  "The  title  of  a  widow 
to  dower  in  her  husband's  land,  being  derived  through  the  hus- 
band, is  liable  to  be  defeated  by  every  subsisting  claim  or  in- 
cumbrance existing  before  the  inception  of  her  right,  and  which 
would  have  defeated  the  husband's  seisin.  It  is  well  settled  that 
if  a  man  before  marriage  enters  into  a  contract  for  the  sale  of 
land  upon  certain  terms  and  conditions,  and  the  terms  and  con- 
ditions are  performed,  his  widow  is  not  entitled  to  dower  in  the 
land,  although  the  husband  dies  without  making  a  conveyance. 


474  REAL    PROPERTY.  [Chap.  14 

(2)    The  husband  must  have  had  at  some  time  during  the 
coverture  the  immediate  estate  of  freehold.     The  husband's 

This  is  on  the  principle  that  the  husband  is  regarded  in  equity 
as  a  trustee  for  the  purchaser." 

In  Chapman  v.  Chapman,  supra,  it  was  inferred  from  the  cir- 
cumstances that  the  whole  purchase  money  was  paid  to  the  hus- 
band during  the  coverture;  and  in  Bur  dine  v.  Burdine,  supra, 
the  woman  who  claimed  under  the  husband's  contract  had  in  his 
lifetime  performed  all  the  terms  and  conditions.  In  Chapman  v. 
Chapman,  therefore,  as  the  husband  had  made  a  conveyance  to 
the  purchaser,  there  did  not  remain  in  the  husband  at  the  time 
of  his  death  any  interest  in  the  land,  legal  or  equitable,  in  which 
the  widow  could  claim  dower.  And  in  Burdine  v.  Burdine,  though 
the  legal  title  remained  in  the  husband  at  the  time  of  his  death, 
he  (and  his  heir  after  him)  was  a  mere  trustee,  without  benefi- 
cial interest.  But  how  as  to  the  vendor's  widow's  dower,  when, 
though  the  contract  is  made  before  marriage,  the  purchaser  con- 
tinues in  default  during  the  coverture  (a  part  of  the  purchase 
money  remaining  unpaid),  and  no  conveyance  of  the  land  has 
been  made  to  him  in  the  lifetime  of  the  husband? 

This  question  arose  in  Pulling  v.  Pulling,  97  Mich.  375  (56  N. 
W.  765),  where  the  facts  were  as  above  supposed;  and  it  was  held 
that,  under  these  circumstances,  the  widow  of  the  vendor  is 
dowable  of  the  unpaid  purchase  money,  but  not  of  the  land  itself. 
The  court  said: 

"It  is  insisted  on  behalf  of  the  estate  that,  at  the  time  of  the 
marriage,  Henry  P.  Pulling  [the  husband]  held  the  legal  title 
only  in  trust  for  the  purchasers.  The  cases  cited,  however,  in 
which  this  has  been  asserted,  and  the  right  to  the  dower  denied, 
are,  without  an  exception,  cases  where  the  vendee  has  paid  the 
entire  consideration.  ...  In  the  present  case  it  is  not  sought 
to  subject  the  purchaser's  interest,  nor  the  interest  held  by  the 
husband  at  the  time  of  the  marriage,  to  dower.  The  only  claim 
made  is  that  the  interest  held  at  the  time  of  his  death  shall  be 
regarded  as  realty.  It  is  purely  a  question  of  the  quality  of  that 
interest.  The  husband  died  seised  not  of  the  legal  title  alone, 
but  of  the  legal  title  with  a  beneficial  interest  aggregating  $45,000 
[i.  e.,  the  amount  of  the  unpaid  purchase  money].  ...  In 
the  present  case  the  wife's  dower  has  been  defeated  only  so  far 
as  the  amount  due  upon  the  contracts  has  been  reduced  by  pay- 
ment. Even  though  a  trust  be  implied,  it  is  one  coupled  with 
a  beneficial  interest,  and  it  is  well  settled  that  the  wife  of  a  trus- 
tee is  entitled  to  dower  commensurate  with  the  husband's  in- 


§295]  DOWER    AND    CURTESY.  475 

estate  in  possession  may  be  for  his  life  only;  but  in  that 
case  it  is  necessary  that  the  husband  should  also  have  the 
inheritance  in  remainder,  without  any  vested  estate  of  free- 
hold in  another  intervening  between  the  husband's  life  estate 
and  his  inheritance.  The  intervention,  however,  of  a  vested 
remainder  not  of  freehold,  or  of  a  freehold  contingent  re- 
mainder, will  not  prevent  the  husband's  estate  from  being 
such  as  to  entitle  his  widow  to  dower  therein.  Thus,  if  there 
is  a  deed  "To  B  for  life,  remainder  to  C  for  life,  remainder 
to  B  and  his  heirs";  here  the  widow  of  B  has  no  dower 
unless  C  dies  before  B,  for  C  has  a  vested  freehold  estate. 
But  if  the  deed  is  "To  B  for  life,  remainder  to  C  for  ten 
years,  remainder  to  B  and  his  heirs,"  or  "To  B  for  life, 
remainder  to  the  unborn  son  of  C  for  life,  remainder  to  B 
and  his  heirs,"  in  both  eases  B's  widow  has  dower.  For  in 
neither  case  is  the  estate  intervening  between  B's  life  estate 
and  his  inheritance  a  vested  freehold  remainder.  But  in  the 
last  example,  if  C  have  a  son  in  the  lifetime  of  B,  then  the 
remainder  will  vest,  and  this  defeats  dower.  And  now  in 
Virginia  the  remainder  to  the  unborn  son  of  C  can  vest 
after  B's  death  (for  by  the  Virginia  statute  a  contingent 
remainder  shall  in  no  case  fail  for  want  of  a  particular  es- 
tate to  support  it,  §  205,  supra) ;  and  in  this  case  also  it  is 
presumed  that  dower  would  be  defeated.  See  1  Scribner, 
Dower,  231,  246;  1  Bish.  Mar.  Worn.  §§  274,  314;  10 
Am.  &  Eng.  Ency.  Law,  134;  1  Washb.  Real  Prop.  206, 
note;  House  v.  Jackson,  50  N.  Y.  161,  165;  Trumbull  v. 

terest.  .  .  .  We  discover  no  difficulty  as  respects  the  ad- 
measurement. Dower  cannot  be  assigned  on  the  lands  in  ques- 
tion, but  a  sum  in  lieu  of  dower  can  be  awarded."  See  Waller 
v.  Waller,  33  Gratt.  83. 

For  the  general  doctrine  that  a  widow's  dower  is  subject  to  all 
equities  arising  out  of  contracts  of  the  husband  before  the  mar- 
riage, see  Beckwith  v.  Beckicith,  61  Mich.  315  (28  N.  W.  116). 
That  dower  is  paramount  to  a  contract  and  conveyance  made  by 
the  husband  alone  after  marriage,  see  McCreary  v.  Leicis,  114 
Mo.  582   (21  S.  W.  855). 


476  REAL    PROPERTY.  [Chap.  14 

Trumbull,  149  Mass.  200  (21  K  E.  366)  ;  Null  v.  Howell, 
111  Me.  274  (20  S.  W.  24);  Rhode  Island,  &c,  Trust  Co. 
v.  Harris,  20  E.  I.  408  (39  Atl.  750). 1 

§  296.  Dower  in  Reversions  and  Remainders. — As  has  been 
seen  (§  295)  it  is  essential  to  the  wife's  right  of  dower  that 
the  husband  should  be  seised,  at  some  time  during  the  cover- 
ture, of  the  immediate  estate  of  freehold  in  the  land.  It  fol- 
lows from  this,  as  a  corollary,  that  there  is  no  dower  in  a 

1  Effect  on  Dower  of  a  Contingent  Freehold  Remainder  Inter- 
vexing  Between  the  Husband's  Freehold  and  His  Inheritance. 
— This  has  been  considered  a  question  of  some  difficulty,  and  Mr. 
Washburn  has  expressed  the  view  that  the  interposition  of  the 
contingent  remainder  in  the  above  case,  "prevented  the  in- 
heritance of  the  husband  from  being  an  entire  one,  which  is  nec- 
essary in  order  to  give  dower."  1  Washb.  R.  P.  206.  The  better 
opinion,  however,  is  believed  to  be  that  of  Scribner,  who  lays 
down  the  law  as  follows  (1  Scribner,  Dower,  239):  "It  is,  as  we 
have  already  seen,  a  fundamental  principle  in  the  law  of  dower 
that  the  husband  must  have  the  immediate  freehold  and  inheri- 
tance simul  et  semel  [at  once  and  together].  If,  therefore,  the 
immediate  contingent  interest  operates  to  prevent  the  life  estate 
of  the  husband  from  merging  in  the  inheritance,  and  thus  keeps 
the  two  estates  disjoined,  it  is  difficult  to  understand  how,  upon 
principle,  the  right  of  dower  can  attach  so  long  as  there  is  a 
continuing  possibility  that  the  contingent  estate  may  vest.  It 
would  seem,  however,  to  be  the  result  of  the  adjudged  cases,  and 
the  concurring  opinion  of  many  of  the  writers  on  the  law  of  real 
property,  that  where  a  contingent  estate  of  freehold  is  inter- 
posed between  a  limitation  to  the  husband  for  life  and  a  subse- 
quent remainder  to  his  heirs  [supposing  that  the  Rule  in  Shelley's 
Case  has  not  been  abolished],  the  remainder  is  executed  in  pos- 
session in  the  tenant  for  life  sub  modo;  or  in  other  words,  that 
the  estates  are  consolidated  or  united  until  the  happening  of  the 
contingency;  but  with  the  qualification  annexed  to  such  consolida- 
tion that,  if  the  contingency  happen,  they  shall  again  divide, 
and  resume  the  character  of  several  or  distinct  estates,  so  as  to 
let  in  the  estate  limited  on  that  contingency.  And  it  appears 
to  be  the  prevailing  opinion  that  upon  this  union  of  the  freehold 
and  inheritance  sub  modo,  a  right  of  dower  attaches,  subject 
to  a  liability  to  be  divested  upon  the  happening  of  the  con- 
tingency, and  the  consequent  vesting  of  the  contingent  estate." 


§§295,296]  DOWER    AND    CURTESY.  477 

reversion  or  remainder  expectant  on  a  life  estate,  unless 
the  life-tenant  dies  in  the  lifetime  of  the  husband;  for  in 
such  case  the  life-tenant  has  the  seisin,  and  not  the  husband. 
1  Scribner,  Dower,  229,  321;  1  Bishop,  Mar.  Worn.  §  273; 
10  Am.  &  Eng.  Ency.  Law,  134;  Durando  v.  Durando,  23 
N".  Y.  331;  Northcutt  v.  Whipp,  12  B.  Monroe,  65;  Malone 
v.  McLaurin,  40  Miss.  141  (90  Am.  Dec.  320) ;  Eenyon  v. 
Kenyon,  17  E.  I.  539  (24  Atl.  787)  ;  Watson  v.  Watson, 
150  Mass.  84  (22  1ST.  E.  438)  ;  Hill  v.  Pike,  174  Mass.  582 
(55  X.  E.  324);  Sammis  v.  Sammis  (R.  I.)  51  Atl.  105; 
Young  v.  Morehead,  94  Ky.  608  (23  S.  W.  511)  ;  Eillett  v. 
Shepard  (III),  34  1ST.  E.  254;  Payne  v.  Payne,  118  Mo. 
174  (24  S.  W.  781);  Garrison  v.  Young,  135  Mo.  203  (36 
S.  W.  662)  ;  Yon  Aro  v.  Thomas,  163  Mo.  33  (63  S.  W. 
94).  And,  mutatis  mutandis,  the  same  doctrine  applies  to 
curtesy.  Webster  v.  Ellsworth,  147  Mass.  602  (18  N.  E. 
569) ;  Todd  v.  Oviatt,  58  Conn.  174  (20  Atl.  440)  ;  Martin 
v.  Traill,  142  Mo.  85  (43  S.  W.  655)  ;  Cox  v.  Boyer,  152 
Mo.  576  (54  S.  W.  467);  Ferguson  v.  Tweedy,  43  N.  Y. 
543. 

On  the  other  hand,  the  rule  is  that  there  is  a  dower  in  a 
reversion  or  remainder  expectant  on  a  term  of  years  created 
by  the  husband  before  the  marriage;  for,  notwithstanding 
the  term,  the  husband  is  seised.  While  the  term  lasts,  how- 
ever, it  is  unaffected  by  the  right  of  dower;  though  if  a  rent 
be  reserved  to  the  husband,  the  widow  is  entitled  to  one-third 
of  it  as  incident  to  her  estate.  But  if  the  term  was  created 
by  the  husband  before  marriage  without  reserving  rent,  or  if 
the  husband's  inheritance  is  expectant  on  a  term  given  by 
his  grantor  to  the  tenant,  in  either  case  the  wife,  though 
entitled  to  dower  in  the  land,  will  nevertheless  take  it  subject 
to  the  term,  with  a  cessat  executio  during  the  term,  and  she 
can  neither  enter  nor  receive  any  profits  until  it  has  termi- 
nated. This,  if  the  term  be  of  long  duration,  virtually  de- 
prives her  of  her  dower.  1  Scribner  on  Dower,  230;  1 
Bishop,  Mar.  Worn.  §  273;  10  Am.  &  Eng.  Ency.  Law,  134; 


478  REAL    PROPERTY.  [Chap.  14 

3  Bac.  Abr.  201;  Weir  v.  Humphries,  4  Ired.  Eq.   (N.  C.) 
264;  1  Washb.  Real  Prop.  204.1 

§  297.  Bower  When  Husband  has  Reversion  on  Which 
Rent  is  Reserved. — These  three  cases  should  be  considered : 

(1)  Lease  by  B  before  marriage  for  a  term  of  years,  re- 
serving rent  during  the  term.  B  marries  F,  and  dies  during 
the  term.  F  shall  be  endowed  of  a  third  part  of  the  rever- 
sion by  metes  and  bounds,  and  receives  the  third  part  of 
the  rent,  and  execution  shall  not  cease  during  the  years.  Of 
course,  however,  she  does  not  oust  the  tenant,  Co.  Litt.  32  a; 
Herbert   v.    Wren,    7    Cranch   370;   1    Scribner   on   Dower, 

1  Dower  in  Reversions  and  Remainders. — In  the  above  discus- 
sion, it  is  assumed  that  the  husband  becomes  a  reversioner  after 
a  life  estate  by  his  conveyance,  before  his  marriage,  of  the  land 
to  a  third  person  for  life.  For  if  the  conveyance  was  made  by 
the  husband  after  his  marriage,  the  title  to  dower  would  have 
already  attached  before  the  conveyance,  and  in  the  language  of 
Kent  (4  Com.  13th  ed.  39),  "the  wife  is  dowable  of  the  land,  and 
defeats  the  lease  [for  life]  by  title  paramount."  When  the  hus- 
band is  a  remainderman — as,  for  example,  when  X  conveys  to  A 
for  life,  remainder  to  B  (husband)  and  his  heirs — it  is  imma- 
terial whether  this  conveyance  is  made  by  X  before  or  after  B's 
marriage;  for  in  neither  case  would  B  have  the  immediate  free- 
hold, unless  A  died  before  B.  It  follows  also,  when  a  husband 
is  the  owner  of  a  reversion  or  remainder  expectant  on  a  life 
estate,  that  he  can  always  defeat  his  wife's  dower  therein  by 
alienating  his  reversion  or  remainder  during  the  continuance  of 
the  life  estate.  1  Scribner,  Dower,  605 ;  10  Am.  &  Eng.  Ency.  Law, 
134,  note  3. 

As  to  a  lease  for  years  made  by  the  husband  of  his  land  during 
the  coverture,  the  general  rule  is,  as  stated  by  Scribner  (1  Scrib- 
ner, Dower,  604),  that  "all  charges  or  derivative  interests,  cre- 
ated by  the  husband  subsequent  to  the  attachment  of  the  wife's 
right  [of  dower]  are  voidable  as  to  that  part  of  the  land  which 
is  recovered  in  dower."  And  he  quotes  Park  on  Dower,  237,  238, 
as  follows:  "If  tenant  in  fee-simple  take  a  wife,  and  then  make 
a  lease  for  years  and  dieth,  the  wife  is  endowed;  in  this  case 
she  shall  avoid  the  lease,  but  after  her  decease  the  lease  shall  be 
in  force  again."    See,  also,  1  Scribner,  377;  2  Id.  775-6. 


§§296-298]  DOWER    AND    CURTESY.  479 

230,  377;  1  Bish.  Mar.  Worn.  §  273;  2  Min.  Ins.  (4th  ed.) 
151. 

(2)  Lease  by  B  before  marriage  to  C  for  life,  reserving 
rent  during  the  term.  B  marries  F,  and  dies  during  the 
life  of  C.  F  has  dower  neither  in  the  land  nor  in  the  rent. 
iSTot  in  the  land  because  B  was  not  seised  during  the  cover- 
ture; nor  in  the  rent  reserved,  because  B  had  not  in  it  an 
estate  of  inheritance.  Blow  v.  Maynard,  2  Leigh,  30;  Cocke 
v.  Phillips,  12  Id.  248.  The  rent  in  such  cases  passes  exclu- 
sively to  the  heir  as  incident  to  the  reversion.  1  Scribner  on 
Dower,  373. 

(3)  Gift  by  B  before  marriage  to  C  in  tail,  reserving  rent. 
B  marries  F  and  dies.  Here  F  has  dower  in  the  rent,  be- 
cause it  is  a  rent  of  inheritance.  Co.  Litt.  32  a.  But  there 
is  no  dower  in  the  land,  for  B  had  not  the  immediate  estate 
of  freehold.  And  on  the  death  of  C  without  issue,  the  rent 
reserved  becomes  extinct,  and  of  course  dower  therein  ceases. 
But  if  a  rent  charge  in  tail  be  granted,  issuing  out  of  land, 
and  the  tenant  in  tail  of  the  rent  dies  without  issue,  his  widow 
shall  nevertheless  have  dower.  1  Scribner  on  Dower,  373; 
ibid,  374;  §  55  supra;  § infra. 

§  298.  No  Dower  Out  of  Dower. — In  connection  with  the 
subject  of  dower  in  reversions  expectant  on  a  life  estate,  the 
maxim  should  be  considered  which  forbids  dower  to  be  as- 
signed out  of  dower — dos  de  dote  peti  non  debet.  The  mean- 
ing, of  course,  is  that  when,  under  the  circumstances  stated 
below,  land  has  been  assigned  to  one  widow,  no  dower  in 
such  land  can  be  had  by  another.  And  no  reason  and  au- 
thority, mutatis  mutandis,  the  same  doctrine  applies  to  cur- 
tesy. 

Let  there  be  grandfather  (G  F),  father  (F),  and  son  (S). 
Also  the  wife  of  the  grandfather  (G  M),  and  the  wife  of 
the  father  (M).  Suppose  G  F  and  F  dead,  and  both  the 
widows,  G  M  and  M  living.  Land  has  descended  from  G  F 
to  F,  and  from  F  to  S,  who  is  living,  and  must  assign  dower 
to  both  the  widows.     Now  the  maxim  above  teaches  that  if 


480  REAL    PROPERTY.  [Chap.  14 

one-third  of  the  land  is  assigned  to  G  M  as  her  dower,  then 
M  can  never  have  dower  in  that  third,  not  even  after  the 
death  of  G  M,  because  that  would  be  to  give  her  dower  out 
of  dower,  which  the  law  forbids.  But  in  order  that  the 
maxim  may  apply  two  things  must  concur:  1.  The  land 
must  descend  from  GFtoF;  2.  G  M  must  have  her  dower 
actually  assigned  her,  before  M  receives  dower.  1  Scribner 
on  Dower,  324,  333;  1  Bishop,  Mar.  Worn.  275;  8  Am.  & 
Eng.  Ency.  Law  (2d  ed.)  511;  10  Id.  135;  2  Min.  Ins. 
128;  1  Tho.  Co.  574;  Blow  v.  Maynard,  2  Leigh  (Va.)  29; 
Durando  v.  Durando,  23  K  Y.  331;  Safford  v.  Safford, 
7  Paige  Ch.  259    (32  Am.   Dec.   633)  ;  Matter  of  Cregier, 

1  Barb.  Ch.  598  (45  Am.  Dec.  416)  ;  Baker  v.  Baker,  167 
Mass.  575  (46  N.  E.  391)  ;  Carter  v.  McDaniel,  94  Ky. 
564  (23  S.  W.  507);  Null  v.  Howell,  111  Mo.  273  (20 
S.  W.  24). 

The  reason,  then,  that  M  can  have  no  dower  out  of  G  M's 
dower,  is,  that  as  to  the  one-third  assigned  G  M  for  life, 
the  husband  of  M  was  never  seised  at  any  time  during  the 
coverture.  As  to  that  one-third,  his  estate  was  a  reversion 
expectant  on  a  freehold,  in  which  we  have  seen  there  can  be 
no  dower.  The  explanation  of  this  is  to  be  found  in  the 
doctrine,  already  alluded  to  (§  288,  supra),  by  which  a 
widow,  when  dower  is  assigned  her,  is  deemed  in,  by  and 
under  her  husband,  as  if  she  had  been  enfeoffed  by  him 
at  the  moment  of  his  death.  The  effect  is  to  break  the  descent 
of  the  dower  lands  to  the  heir,  to  whom  only  a  reversion  in 
them,  after  the  widow's  life  estate,  descends.  And  though 
the  heir  of  G  F  should  enter  on  all  the  lands,  and  (as  F 
does  in  the  case  before  us)  die  without  having  assigned  dower 
to  his  mother  (G  M),  yet  when  his  son  (S)  assigns  her 
dower,  the  doctrine  applies,  and  the  grandmother  is  in  as  if 
enfeoffed  by  her  husband,  and  her  seisin  relates  back  and 
takes  effect  from  the  time  of  his  death.  Reynolds  v.  Rey- 
nolds, 5  Paige  161;  1  Cruise  Dig.  200;  Prest.  Est.  550-5; 

2  Scribner,  Dower,  82. 

The  doctrine  of  no  dower  out  of  dower  only  applies  after 


§§298,299]  DOWER    AND    CURTESY.  481 

assignment  of  dower  to  the  elder  widow  (G  M).  If  she  has 
dower  first  assigned  her,  then  the  younger  widow  can  never 
be  endowed  of  the  elder's  dower.  But  if  the  younger  widow 
is  first  endowed  of  the  whole  land,  though  she  will  yield  to 
the  elder's  superior  right  when  subsequently  endowed,  and 
be  confined  during  the  elder's  life  to  dower  in  two-thirds  of 
the  land,  yet  on  the  death  of  the  elder  widow,  the  younger 
shall  be  restored  to  her  dower  in  the  whole.  The  ground  for 
this  diversity,  though  explained  by  Lord  Coke,  is  not  very 
satisfactory.  Co.  Lift.  31  b;  1  Scribner  on  Dower,  326; 
1  Bish.  Mar.  Worn.  §  277. 

The  reason  of  the  maxim  dos  de  dote  requires  that  the 
land  should  come  to  the  father  by  descent  from  the  grand- 
father, through  a  devise,  which  operates  only  at  the  death  of 
the  grandfather,  is  considered,  in  this  connection,  equivalent 
to  descent.  Robinson  v.  Miller,  2  B  Monroe,  284;  1  Scrib- 
ned,  Dower,  330.  For  if  the  grandfather  had  actually  en- 
feoffed the  father,  then  the  latter  would  have  had  seisin  in 
the  former's  lifetime,  which  could  not  have  been  annulled 
by  the  relation  back  of  the  grandmother's  seisin  to  the  death 
of  her  husband.  1  Scribner  on  Dower,  331;  1  Bish.  Mar. 
Worn.  §  276;  4  Co.  122  a. 

When  a  husband  sells  land  without  the  concurrence  of  his 
wife,  and  both  grantor  and  grantee  die  leaving  widows,  the 
widow  of  the  grantor,  having  the  elder  title  in  dower,  is 
endowed  of  one-third  of  the  whole  land,  and  the  widow  of  the 
grantee  of  one-third  of  the  remaining  two-thirds.  But  on 
the  death  of  the  grantor's  widow,  the  widow  of  the  grantee 
is  let  in  to  her  full  right  of  dower  in  the  whole  land.  4  Kent's 
Com.  (64);  1  Scribner  on  Dower,  330;  Eeeve's  Dom.  Bel. 
58;  Dunham  v.  Osborn,  1  Paige  634;  10  Am.  &  Eng.  Ency. 
Law,  136. 

§  299.  Dower  in  Encumbered  Land. — If  the  encumbrance 
existed  before  the  marriage,  or  if  the  land  comes  to  the 
husband  already  encumbered  by  a  vendor's  lien  or  other- 
wise, or  if  the  encumbrance  is  created  after  marriage  with 

31 


482  REAL    PROPERTY.  [Chap.  14 

the  wife's  concurrence,  it  is  paramount  to  dower;  but  dower 
is  at  common  law  superior  to  any  encumbrance  created  after 
marriage  by  the  sole  act  of  the  husband,  if  the  land  has  once 
vested  in  the  husband  subject  to  dower.  Thus,  if  the  encum- 
brance is  by  mortgage,  and  is  not  paramount  to  dower,  the 
widow  has  her  full  dower  in  the  land  itself;  but  if  the 
mortgage  is  paramount  to  dower,  the  widow  is  clowable  of 
the  equity  of  redemption  only.1  Heth  v.  Cocke,  1  Eand. 
(Va.)  344;  Iaege  v.  Bossieux,  15  Gratt.  (Va.)  83,  105 
(dower  against  mechanic's  lien) ;  Culbertson  v.  Stevens,  82 
Va.  406;  Alexander  v.  Byrd,  85  Va.  690;;  Fichlin  v.  Rixey, 
89  Va.  832;  Offield  v.  Davis  (Va.)   40  S.  E.  910;  Martin 

1  Encumbrances  Paramount  to  Dower. — In  James  v.  Upton,  96 
Va.  296  (31  S.E.  252),  it  is  said:  "In  this  State  one  of  the  common 
methods  of  securing  payment  of  the  purchase  price  of  land,  when 
credit  is  given  for  all  or  a  portion  of  the  price,  is  for  the  vendor 
to  convey  the  land  to  the  vendee,  and  expressly  retain  a  lien 
thereon  in  the  conveyance  [see  C.  V.  §  2474;  p.  473,  infra,  note], 
to  secure  the  payment  of  the  unpaid  purchase  price.  Another  mode 
is  for  the  vendor  to  enter  into  an  executory  contract  with  the  ven- 
dee for  the  sale  of  the  land,  and  to  retain  the  title  to  secure  the 
payment  of  the  unpaid  purchase  price.  If  the  first  method  be  fol- 
lowed [where  the  vendor  conveys  the  land],  and  before  the  ven- 
dee has  paid  the  entire  purchase  price,  he  die,  or  alien  the  land 
without  his  wife's  uniting  with  him  in  the  manner  prescribed  by 
law,  there  can  be  no  question  that  his  widow  would  be  entitled  to 
dower  in  the  land,  subject  to  the  lien  upon  it  for  unpaid  purchase 
money.  If  the  last  method  be  adopted  [where  the  vender  retains 
title],  and  the  husband  [vendee]  die,  or  alien  the  land  under  like 
conditions,  his  widow  must  necessarily  have  the  same  right  of 
dower  in  the  land  as  in  the  other  case  mentioned,  unless  we  disre- 
gard the  plain  meaning  of  §  2429  [see  §  288,  supra].  His  bene- 
ficial interest  in  the  land  in  each  case  is  precisely  the  same.  He 
is  the  owner  of  the  land,  subject  to  the  incumbrance  upon  it  for 
the  unpaid  purchase  price.  The  only  difference  is  that  in  one  case 
he  has  the  legal  title,  and  in  the  other  the  vendor  holds  the  legal 
title  in  trust  for  him,  subject  to  the  lien."  See  Building,  etc.,  Co. 
v.  Fray,  96  Va.  559  (32  S.  E.  58). 


§§299,300]  DOWER    AND    CURTESY.  483 

v.  Smith,  25  W.  Va.  579;  Roush  v.  Miller,  39  W.  Va.  638 
(20  S.  E.  663;  Blair  v.  Mounts,  41  W.  Va.  706  (24  S.  E. 
620) ;  Porter  v.  Lazear,  109  U.  S.  84  (clower  against  as- 
signee in  bankruptcy) ;  Sarver  v.  ClarJcson,  156  Incl.  316 
(59  N".  E.  933);  McClure  v.  Fairfield,  153  Pa.  St.  411 
(26  Atl.  446) ;  Seibert  v.  Todd,  31  S.  C.  206  (9  S.  E.  822; 
4  L.  R.  A.  606,  and  note)  ;  Miller  v.  Farmers  Bank,  49  S.  C. 
247   (61  Am.  St.  Eep.  82H).1 

§  300.  Purchase-Money  Mortgage. — When  A  sells  land  on 
credit  to  B,  and  conveys  it  to  B  by  deed,  and  B,  as  a  part 
of  the  same  transaction,  mortgages  the  land  to  A  to  secure 
the  purchase-money,  such  mortgage  is  called  a  purchase-money 
mortgage.  24  Am.  &  Eng.  Ency.  Law,  466.  Its  peculiarity 
is  that,  though  the  wife  of  B  does  not  unite  with  him  in 
the  mortgage,  she  is  nevertheless  not  dowable  of  the  land 
itself,  but  only  of  the  equity  of  redemption  after  the  payment 
of  the  mortgage.  The  reason  is  that  as  the  deed  to  B  and 
the  mortgage  by  B  are,  by  supposition,  parts  of  one  transac- 
tion, the  seisin  of  B  is  transitory  only ;  i.  e.,  he  does  not  take 
the  land  beneficially  even  for  an  instant,  but  only  as 
a  trustee  to   execute  the  mortgage;   and   the  effect   is   the 

1  Encumbrance  Created  after  Marriage,  by  Sole  Act  of  Hus- 
band, Made  by  Statute  Paramount  to  Dower. — As  to  the  lien  for 
quotas  of  the  Mutual  Assurance  Society  of  Virginia,  which,  though 
the  policy  of  insurance  be  taken  out  by  the  husband  after  mar- 
riage, is  by  statute  made  paramount  to  the  widow's  dower,  see 
Shirley  v.  Mutual  Assurance  Society,  2  Rob.  (Va.)  705.  And  in 
Mutual  Assurance  Society  v.  Stone,  3  Leigh  (Va.)  218,  it  was  held 
that  this  lien  attaches  to  and  follows  the  property  into  the  hands 
of  a  purchaser  for  value  without  notice.  But  see  now  Acts  Va. 
1899-1900,  c.  421,  p.  446,  requiring  recordation  of  this  lien  in  order 
to  be  valid  against  purchasers  for  valuable  consideration  without 
notice. 


4X1  REAL    PROPERTY.  [Chap.  14 

same  as  if  the  land  had  come  to  him  with  a  vendor's  lien  or 
other  encumbrance  paramount  to  dower  already  on  it.1 

1  Transitory  Seisin. — In  2  Bl.  Com.  132,  it  is  said:  "The  seisin 
of  the  husband  for  a  transitory  instant  only,  when  the  same  act 
which  gives  him  the  estate  conveys  it  also  out  of  him  again  (as 
when  by  a  fine  land  is  granted  to  a  man,  and  he  immediately  ren- 
ders it  back  by  the  same  fine),  such  a  seisin  will  not  entitle  the 
wife  to  dower;  for  the  land  was  merely  in  transitu,  and  never 
rested  in  the  husband,  the  grant  and  render  being  one  continued 
act.  But  if  the  land  abides  in  him  for  the  interval  of  but  a  single 
moment,  it  seems  that  the  wife  shall  be  endowed  thereof." 

It  will  be  seen  that  Blackstone  contrasts  seisin  for  a  "transitory 
instant"  with  seisin  for  a  "single  moment" — the  latter  being  suf- 
ficient for  dower,  while  the  former  is  not — and  this,  no  doubt,  has 
led  some  writers  to  distinguish,  in  regard  to  time,  transitory  (or 
instantaneous)  seisin  on  the  one  hand,  and  a  momentary  seisin  on 
the  other.  But  it  is  manifest  from  Blackstone's  own  statement 
that  the  real  distinction  intended  is  not  as  to  the  duration  of  the 
husband's  seisin,  but  as  to  its  character.  When  "transitory,"  it 
"never  rested  in  the  husband";  when  momentary  "it  abides  in 
him";  i.  e.,  in  the  one  case  he  receives  it  as  a  conduit  merely  to 
transfer  it  to  another,  in  the  other  he  receives  it  beneficially, 
though  it  may  remain  with  him  but  for  a  moment.  It  could  be 
wished  that  the  use  of  the  term  "instantaneous"  (which  is  some- 
times used  in  one  sense  and  sometimes  in  another,  though  usually 
as  the  equivalent  of  "transitory")  could  be  avoided,  leaving 
"transitory"  to  express  (as  the  word  implies)  seisin  received  for 
an  ulterior  purpose,  and  "momentary"  to  express  any  seisin,  how- 
ever brief,  if  only  it  be  beneficial. 

The  purchase-money  mortgage  as  explained  above  is  a  good  ex- 
ample of  a  transitory  seisin.  This  prevents  dower  in  the  land. 
But  now  when  there  is  dower  in  an  equity  of  redemption,  the 
widow  has  dower  in  the  surplus  after  payment  of  the  mortgage, 
for  to  this  extent  the  husband  does  take  beneficially.  When,  how- 
ever, B  receives  the  title  to  land  for  the  sole  purpose  of  passing  it 
over  to  C,  B's  widow  would  be  precluded  from  dower  altogether, 
as  he  would  be  in  effect  a  mere  trustee  for  C.  McCauley  v.  Grimes, 
2  Gill  &  J.  (Md.)  318,  324;  1  Scribner,  Dower,  273,  278;  2  Min.  Ins. 
146. 

An  excellent  example  of  a  momentary  seisin  is  found  in  the  case 
of  Broughton  v.  Randall,  Noy,  64,  which  is  thus  stated  and  ex- 
plained in  1  Roper  H.  &  W.  373 :    "A  father  was  tenant  for  life,  re- 


§  300]  DOWER    AND    CURTESY.  485 

In  order  that  the  deed  and  mortgage  may  constitute  one 
transaction  there  must  be  either  (1)  an  agreement  when  the 
deed  is  made  that  the  vendee  shall  execute  the  mortgage  or 
(2)  the  execution  of  the  mortgage  must  be  on  the  same  day 
with  the  deed.  In  the  former  case,  when  an  express  agree- 
ment is  proved,  the  postponement  of  the  actual  execution 
of  the  mortgage  will  not  destroy  the  unity  of  the  transaction. 
Wheatley  v.  Calhoun,  12  Leigh  (Va.)  264.  But  in  the  latter, 
in  absence  of  an  express  agreement,  the  delivery  of  the  deed 
and  mortgage,  to  constitute  one  transaction,  must  be,  as  it  is 
said,  simultaneous;  but  as  the  law  in  this  case  disregards 
fractions  of  a  day  it  is  held  sufficient  if  the  mortgage  is 

mainder  to  his  son  in  tail,  remainder  to  the  right  heirs  of  the  fa- 
ther. Both  of  them  were  attainted  of  felony,  and  executed  together. 
The  son  had  no  issue,  and  the  father  left  a  widow.  Evidence  was 
given  of  the  father's  having  moved  or  struggled  after  the  son,  and 
the  father's  widow  claimed  dower  of  the  estate,  and  it  was  ad- 
judged to  her.  The  principle  appears  to  be  this:  that  the  instant 
the  father  survived  the  son,  the  estate  for  the  life  of  the  father 
united  with  the  remainder  in  fee  limited  to  him  upon  the  determi- 
nation of  the  vested  estate  tail  in  the  son,  so  that  the  less  estate 
having  merged  in  the  greater,  the  father  became  seised  of  the 
freehold  and  inheritance  for  a  moment  [i.  e.,  beneficially,  though 
momentarily]  to  which  dower  attached  itself."  See  as  to  the  effect 
of  a  vested  remainder  interposed  between  the  husband's  freehold 
and  inheritance,  §  295,  supra. 

With  reference  to  beneficial  seisin  as  the  test  for  dower,  it  is 
said  in  1  Scribner,  Dower,  278:  "If  the  husband  mortgage  lands 
of  which  he  is  seised  to  a  third  person  to  secure  a  debt  which  does 
not  originate  from,  and  has  no  connection  with  the  purchase  of  the 
lands,  the  general  rule  is  that  the  wife  is  not  affected  by  the  mort- 
gage; and  the  fact  that  the  mortgage  is  executed  immediately 
after  the  seisin  has  attached  will  not,  it  is  apprehended,  make  any 
material  difference  in  the  case.  ...  A  husband  at  the  same  time 
that  he  received  a  deed  for  lands  conveyed  them  by  deed  to  a  third 
person;  and  it  was  determined  that  inasmuch  as  he  had  been 
seised  beneficially,  although  for  an  instant  only,  the  wife  should 
have  her  dower  [citing  Stanioood  v.  Dunning,  2  Shep.  (Me.)  290], 
and  this  holding  would  seem  to  be  in  accordance  with  correct  prin- 
ciple, and  the  general  tenor  of  the  authorities." 


486  REAL    PROPERTY.  [Chap.  14 

executed  on  a  later  hour  of  the  day  on  which  the  conveyance 
to  the  purchaser  is  made.  When,  however,  there  is  no  ex- 
press agreement  that  the  purchaser  shall  give  the  mortgage, 
and  it  is  executed  on  a  day  subsequent  to  the  conveyance, 
the  wife  (unless  she  unites  in  the  mortgage)  is  entitled  to 
her  full  dower  in  the  land.1 

It  need  hardly  be  added  that  the  above  doctrines  as  to  a 
purchase-money  mortgage  are  equally  applicable  where  the 
purchaser,  instead  of  a  mortgagee,  gives  a  deed  of  trust  to  a 
third  person  to  secure  to  the  vendor  the  payment  of  the  pur- 
chase-money— the  usual  course  in  Virginia  and  other  States. 

1  Mortgage  or  Deed  of  Trust  to  Secure  Purchase-Money  under 
the  West  Virginia  Statute. — In  several  of  the  States  the  general 
rule  above  laid  down  is  declared  by  statute.  See  10  Am.  &  Eng. 
Ency.  of  Law,  139,  note.  The  West  Virginia  statute,  however,  is 
peculiar  in  this,  that  it  seems  to  make  a  mortgage  for  purchase- 
money  paramount  to  dower  (when  the  land  is  sold  to  satisfy  the 
same  in  the  lifetime  of  the  husband)  though  the  wife  does  not 
unite  therein,  and  though  the  mortgage  by,  and  the  deed  of  con- 
veyance to,  the  husband  are  not  parts  of  one  transaction.  The  stat- 
ute declares  (Code  W.  Va.  1899,  ch.  65,  §  3) ;  "Where  land  is  bona 
fide  sold  in  the  lifetime  of  the  husband  to  satisfy  a  lien  or  encum- 
brance thereon  created  by  deed  in  which  the  wife  has  united,  or 
for  the  purchase  money  thereof  whether  she  has  united  therein 
or  not,  .  .  .  she  shall  have  no  right  to  be  endowed  of  such  land"; 
but  (the  statute  goes  on  to  provide)  shall  be  dowable  of  the  sur- 
plus only  after  satisfying  the  said  lien,  or  encumbrance,  or  pur- 
chase money. 

It  will  be  perceived  that  nothing  is  said  as  to  the  time  when  the 
husband  shall  give  the  deed  creating  the  encumbrance,  or  as  to  its 
being  given  in  pursuance  of  an  agreement  with  the  vendor  before 
his  deed  of  conveyance.  If  the  view  suggested  above  as  to  the 
effect  of  the  statute  be  correct,  its  policy  would  seem  to  be  to  ex- 
tend the  general  rule  which  denies!  homestead  in  all  cases  as 
against  the  seller's  claim  to  unpaid  purchase-money  (see  Code  W. 
Va.  ch.  41,  §  32)  to  the  widow's  claim  of  dower,  making  it  subor- 
dinate to  the  seller's  claim  for  unpaid  purchase-money  whenever 
the  buyer  has  at  any  time  given  a  mortgage  or  deed  of  trust  to 
secure  it  (though  his  wife  does  not  unite  therein),  provided  the 
land  is  bona  fide  sold  in  the  husband's  lifetime  to  satisfy  such 
encumbrance.     See  Constitution  of  Virginia,  1902,  §  190. 


§§300,301]  DOWER    AND    CURTESY.  487 

And  it  is  also  held  by  the  great  weight  of  authority  that  the 
doctrine  of  treating  the  deed  of  conveyance  and  the  mort- 
gage as  constituting  one  transaction  applies  equally  in  favor 
of  a  third  person  who  advances  the  purchase-money  to  the 
buyer,  and  takes  from  him  a  mortgage  or  deed  of  trust  by 
way  of  security.  See  1  Scribner,  Dower,  274;  10  Am.  & 
Eng.  Ency.  Law  (2d  ed.)  137;  4  L.  E.  A.  606,  note;  Roush 
v.  Miller,  39  W.  Va.  638  (20  S.  E.  663).1 

§  301.  Dower  in  the  Equity  of  Redemption  of  Mortgaged 
Land.2 — In  1   Scribner,  Dower,  463,  it  is  said:    "Until  the 

1  Purchase-Money  Mortgage. — The  cases  on  this  subject  are 
numerous.  See  Gilliam  v.  Moore,  4  Leigh  (Va.)  30;  Blair  v. 
Thompson,  11  Gratt.  (Va.)  441;  Summers  v.  Darne,  31  Gratt.  791; 
Cowardin  v.  Anderson,  78  Va.  88;  Coffman  v.  Coffman,  79  Va.  504; 
Hurst  v.  Dulaney,  87  Va.  444;  Building,  etc.,  Co.  v.  Fray,  96  Va. 
559;  George  v.  Cooper,  15  W.  Va.  666;  Martin  v.  Smith,  25  W.  Va. 
580;  Hallett  v.  Parker,  69  N.  H.  134  (39  Atl.  583);  Boorum  v. 
Tucker,  51  N.  J.  Eq.  135  (26  Atl.  456);  Butcher  v.  Thornourg,  131 
Ind.  237  (30  N.  E.  1073) ;  Elliott  v.  Plattor,  43  Ohio  St.  198  (1  N. 
E.  222);  Jefferies  v.  Fort,  43  S.  C.  48  (20  S.  E.  755);  Groce  v. 
Ponder,  (S.  C.)  41  S.  E.  83. 

For  the  doctrine  under  the  Georgia  statute  (contrary  to  the  gen- 
eral rule),  see  Slaughter  v.  Culpepper,  44  Ga.  319.  The  Kentucky 
doctrine  is  also  said  to  be  exceptional.  See  1  Scribner,  Dower, 
276,  and  2  Min.  Ins.  146,  both  citing  McClure  v.  Harris,  12  B.  Mon. 
261.     But  see  Gully  v.  Ray,  18  B.  Mon.  107,  114. 

2  Dower  in  an  Equity  of  Redemption. — In  this  connection,  it  is 
assumed,  of  course,  that  the  right  of  the  mortgagee  is  paramount 
to  dower  (see  §  299,  supra).  For  if  this  were  not  the  case,  the 
widow  would  be  dowable  of  the  land  itself,  and  the  mortgagee's 
security  would  be,  to  that  extent,  diminished,  as  is  the  case  when 
the  wife  does  not  join  in  the  husband's  mortgage  made  during  the 
coverture.  But  when  the  mortgage  on  the  husband's  land  to  se- 
sure  his  debt  is  paramount  to  dower,  and  the  debt  is  due  and  paya- 
ble, the  widow  of  the  mortgagor  can  be  endowed,  so  far  as  the 
right  of  the  mortgagee  is  concerned,  of  the  equity  of  redemption 
only,  i.  e..  of  the  residue  of  interest  remaining  in  the  husband,  or 
his  heirs,  after  the  payment  of  the  mortgage  debt.  This  assumes 
that  the  mortgaged  land  is  sold  under  a  foreclosure,  and  that  a 


488 


REAL    PROPERTY.  [Chap.  14 


passage  of  the  late  Dower  Act  (see  §  292,  supra)  it  was 
held  in  England  that  equities  of  redemption  of  mortgages 
in  fee  were  not  subject  to  dower.  This  was  considered  the 
necessary  result  of  the  rule  excluding  dower  from  equitable 
estates,  the  right  of  redemption  being  regarded  as  a  mere 

surplus  remains  after  satisfaction  of  the  mortgage.  Here  it  is 
plain  that,  strictly  speaking,  she  is  endowed  not  of  the  equity  of 
redemption  (which  has  ceased  to  exist),  but  of  its  equivalent  in 
money.  The  widow,  however,  has  a  right  to  redeem  the  land  by 
virtue  of  her  interest  in  the  equity  of  redemption;  and  in  that  case 
she  is  endowed  of  the  land  itself,  just  as  if  no  mortgage  had  ever 
encumbered  it.  And  by  the  consent  of  the  creditor,  if  neither  the 
widow  nor  the  heir  cares  to  redeem,  the  mortgage  debt  may  re- 
main outstanding,  in  which  case,  also,  the  widow  must  be  endowed 
of  the  land  itself.  But  as  the  widow  has  the  possession  and  profits 
of  one-third  of  the  land,  she  must  keep  down  the  interest  on  one- 
third  of  the  mortgage  debt.  See,  as  to  the  right  of  the  widow  to 
redeem,  1  Scribner,  Dower,  481,  497;  1  Bishop,  Mar.  Worn.  §  292; 
10  Am.  &  Eng.  Ency.  Law  (2d  ed.)  166;  11  Id.  223.  As  to  dower 
when  the  mortgage  debt  remains  outstanding,  see  1  Scribner,  546, 
595;  2  Id.  648,  696,  775;  2  Min.  Ins.  (4th  ed.)  142,  387. 

It  is  well  settled  that  not  only  is  the  widow  entitled  to  redeem 
by  virtue  of  her  dower  consummate  after  her  husband's  death,  but 
even  a  wife,  who  has  joined  in  the  husband's  mortgage,  may  re- 
deem in  his  lifetime,  by  virtue  of  her  inchoate  right  of  dower.  10 
Am.  &  Eng.  Ency.  Law,  166;  11  Id.  223,  and  note.  Thus  in  Gate- 
wood  v.  Gatewood,  75  Va.  407,  412,  it  is  said:  "It  is  well  settled 
that  a  junior  creditor,  a  junior  mortgagee,  a  tenant  by  the  curtesy, 
and  indeed  all  persons  having  an  interest  in  the  estate,  may  insist 
on  the  redemption  of  the  mortgage  in  order  to  the  due  enforce- 
ment of  their  claims.  The  question  arises,  Is  the  wife,  the  hus- 
band still  living,  entitled  to  exercise  this  privilege?  .  .  .  This 
court  has  repeatedly  held  that  the  wife's  contingent  right  of  dower 
may  be  the  subject  of  contract  and  sale.  In  Harrison  v.  Carroll, 
11  Leigh  (Va.)  Judge  Stanard  said:  "The  dower  interest  of  the 
wife  constitutes  a  valuable  consideration  for  a  settlement  which 
will  be  upheld  against  the  claims  of  creditors';  and  this  doctrine 
has  been  reaffirmed  and  followed  in  a  number  of  cases.  William 
and  Mary  College  v.  Powell,  12  Graft.  372.  That  the  dower  inter- 
est of  the  wife  in  the  husband's  estate  [during  coverture]  is  such 
as  entitles  her  to  redeem  seems,  therefore,  too  clear  for  contro- 
versy."    See  2  Jones,  Mortgages,  §  1067. 


§  301]  DOWER    AND    CURTESY.  489 

equitable  title."  But  the  Dower  Act  of  1833  (referred  to 
above)  was  construed  to  give  dower  in  an  equity  of  redemp- 
tion.   18  Eng.  Buling  Cases,  376,  note. 

The  same  result  was  reached  in  Virginia  by  the  construc- 
tion placed  on  the  Act  of  1785,  taking  effect  January  1, 
1787.  See  §  294,  supra.  In  James  v.  Upton,  96  Va.  296, 
the  court  quotes  with  approval  this  language  from  the  opinion 
of  Judge  Baldwin  in  Wilson  v.  Davisson,  2  Bob.  (Va.)  406: 
'•'Our  Act  of  1785  [now  §  2429  of  the  Code]  gives  dower  in 
equitable  in  like  manner  as  in  legal  estates;  and  in  this, 
as  in  other  respects,  the  rules  and  incidents  of  legal  estates 
are  now  applied  to  trust  and  mortgaged  property.  The 
equity  of  redemption  of  a  mortgage  in  fee  descends  to  the 
heirs  of  the  mortgagor;  and  though  the  widow  is  not  entitled 
to  dower  as  against  the  mortgagee,  where  the  mortgage  was 
executed  before  the  coverture,  or  during  the  coverture  with 
her  concurrence  in  the  mode  prescribed  by  law,  yet  in  either 
case  she  is  entitled  to  dower  in  the  equity  of  redemption; 
for  of  that,  or  what  is  the  same  thing,  of  the  estate  subject 
to  the  mortgage,  the  husband  is  to  be  considered  as  having 
died  seised.  Heth  v.  Cocke,  1  Band.  (Va.)  344;  Swaine  v. 
Ferine,  5  Johns.  Ch.  492;  Hall  v.  James,  6  Johns.  Ch.  258." 

In  the  United  States  generally  a  widow  has  dower  in  the 
equity  of  redemption  of  a  mortgage  in  fee.  In  many  States, 
this  right  is  given  by  statute;  but  in  others,  the  common 
law  doctrine  that  the  equity  of  redemption  of  the  husband 
in  land  mortgaged  by  him  in  fee  is  an  equitable  estate  only 
is  rejected,  except  as  against  the  mortgagee  (see  Hewitt  v. 
Cox,  55  Ark.  225  (15  S.  W.  1026)  ;  and  it  is  held  that  as  to 
all  other  persons  he  may  still  be  deemed,  notwithstanding  the 
mortgage  in  fee,  to  have  the  legal  seisin.  And  in  a  few 
of  the  States  the  common  law  doctrine  is  abrogated  altogether, 
and  it  is  held  that  the  mortgagor  has  the  legal  seisin  not  only 
as  to  all  other  persons,  but  even  as  to  the  mortgagee,  until 
the  mortgage  is  foreclosed.  And  in  those  States  which  either 
modify  or  reject  the  common  law — whether  holding  that  the 
mortgagor  has  still  the  legal  title  sub   modo,  or  absolutely, 


490 


REAL    PROPERTY.  [Chap.  14 


until  foreclosure — the  widow  is  allowed  dower,  without  the 
aid  of  statute.  1  Scribner,  Dower,  467-476 ;  1  Bishop,  Mar. 
Worn.  §  291;  Bisph.  Eq.  §  151,  note;  11  Am.  &  Eng.  Ency. 
Law,  210,  n.  8 ;  5  L.  E.  A.  519,  note. 

For  an  elaborate  discussion  of  the  nature  of  the  husband's 
interest  after  a  mortgage  in  fee,  see  Montgomery  v.  Bruere, 
4  N.  J.  Law,  300;  s.  c.  5  Id.  1019.  For  an  emphatic 
affirmation  of  the  common  law  doctrine  that  dower  does  not 
attach  to  an  equity  of  redemption,  because  the  wife  is  "not 
dowable  of  an  equitable  seisin,"  see  Mayburry  v.  Brim,  15 
Pet.  (U.  S.)  21,  38. 

§  302.  Dower  in  Equity  of  Redemption  when  Mortgage  is 
Foreclosed  in  the  Husband's  Lifetime. — If  the  equity  of  re- 
demption is  not  foreclosed  in  the  husband's  lifetime,  and 
so  at  his  death  still  exists  as  an  estate  in  the  land, 
it  has  been  seen  (§  301,  supra)  that  the  widow  is  now  dowable 
therein  in  England  and  the  United  States.  It  has  also  been 
stated  (p.  469,  note)  that  the  wife  may,  in  the  lifetime  of  the 
husband,  redeem  a  mortgage  by  virtue  of  her  inchoate  right 
of  dower.  But  suppose  she  does  not  so  redeem,  and  the  mort- 
gage is  foreclosed,  and  the  land  sold  in  the  lifetime  of  the 
husband:  is  the  wife  dowable  of  the  surplus,  if  any,  of  the 
proceeds  of  the  land  after  the  payment  of  the  mortgage  debt  ? 

On  this  question  there  is  some  conflict,  though  the  weight 
of  authority  and  the  better  reason  are  in  favor  of  allowing 
the  widow  dower  in  such  surplus.  See  1  Scribner,  Dower, 
501-505,  where  the  subject  is  discussed,  citing  in  favor  of 
the  right  Denton  v.  Nanny,  8  Barb.  (N.  Y.)  618;  Vartie  v. 
Underwood,  18  Barb.  562;  Vreeland  v.  Jacobus,  19  N.  J. 
Eq.  231;  linger  v.  Letter,  32  Ohio  St.  210.  And  see  4  L.  E. 
A.  118,  note;  Mandel  v.  McClave,  46  Ohio  St.  407  (15  Am. 
St.  Rep.  627).  For  American  statutes,  see  Stimson,  Am. 
Statute  Law,  §  3216. 

The  best  considered  case  in  favor  of  the  wife's  dower  in 
the  surplus  is  Denton  v.  Nanny,  8  Barb.  N.  Y.  618.  The 
court  says:     "Land  has  been  sold  in  which  the  wife  had 


§§301,302]  DOWER    AND    CURTESY.  491 

a  legal  interest  which  was  not  required  to  pay  the  mortgage 
debt.  And  upon  the  principle  of  equitable  conversion  the 
proceeds  so  far  as  affects  her  must  still  be  regarded  as  real 
estate.  .  .  .  She  does  not  ask  to  have  this  money  put 
into  her  immediate  possession.  She  would  have  no  right 
to  that.  But  she  insists  that  the  residuum  of  the  subject 
mortgaged,  not  required  to  satisfy  the  mortgage  debt,  whether 
it  consists  of  lands  unsold,  or  in  the  proceeds  of  lands  sold 
under  the  power  of  the  court,  shall  be  so  appropriated  as  to 
secure  her  dower  should  she  survive  her  husband.  This  I 
think  she  is  entitled  to  have  done." 

On  the  other  hand,  in  one  of  the  earliest  cases  on  the  sub- 
ject, Wilson  v.  Davisson,  2  Bob.  (Va.),  384,  decided  in  1843, 
it  was  held  that  the  widow  of  the  mortgagor,  when  the  land 
is  sold  in  his  lifetime,  is  not  dowable  of  the  surplus.  The 
ground  of  the  decision  is  thus  stated  by  Baldwin,  J. :  "The 
property  sold  was  his  [i.  e.,  the  husband's],  and  its  conver- 
sion from  realty  into  personalty  was  not  his  act,  but  by 
the  operation  of  the  paramount  incumbrance.  In  its  new 
form,  it  was  still  his  after  satisfying  the  incumbrance;  but 
its  character  being  changed,  it  was  no  longer  subject  to  a 
future  dower  title  as  realty,  but  only  to  that  provision  which 
the  law  makes  for  a  widow  out  of  the  personal  estate  of  her 
husband  subsisting  at  his  death,  after  payment  of  his  just 
debts.  If  the  husband  had  been  dead,  and  she  surviving, 
at  the  time  of  the  sale,  then  her  dower  right,  subject  to  the 
incumbrance,  would  have  ripened  into  a  perfect  title,  and 
her  interest  in  the  surplus  could  not  have  been  divested  by 
the  discretion  which  the  court  had  exercised  of  selling  the 
whole  land,  instead  of  such  part  only  as  might  have  been 
sufficient  to  discharge  the  incumbrance."1 

1  The  Doctrixe  of  Wilson  v.  Davisson. — In  this  case  the  para- 
mount encumbrance  was  not  a  mortgage,  but  an  implied  vendor's 
lien,  for  unpaid  purchase-money,  after  the  conveyance  of  the  legal 
title  to  the  husband.  On  this  ground,  viz.,  that  the  husband  had 
legal  seisin  during  the  coverture — one  of  the  three  judges,  who  de- 
cided the  case   (Allen,  J.)   dissented;   but  the  other  two  judges 


492 


REAL    PROPERTY.  [Chap.  14 


The  doctrine  of  Wilson  v.  Davisson  was  abrogated  by 
statute  taking  effect  July  1,  1850  (Code  1849,  ch.  110,  §  3; 
Code  1887,  §  2269),  as  follows: 

"Where  land  is  bona  fide  sold  in  the  lifetime  of  the  hus- 
band to  satisfy  a  lien  or  encumbrance  thereon  created  by 
deed  in  which  the  wife  has  united,  or  created  before  the  mar- 
riage, or  otherwise  paramount  to  the  wife,  she  shall  have 
no  right  to  be  endowed  in  the  said  land.    But  if  a  surplus  of 

(Baldwin  and  Stanard,  JJ.)  refused  to  make  any  distinction  be- 
tween a  vendor's  lien  and  a  mortgage,  and  held  (upon  the  reason- 
ing given  in  the  text)  that  in  both  cases  a  sale  to  satisfy  the  para- 
mount encumbrance  in  the  husband's  lifetime  destroyed  the  wife's 
inchoate  dower  right  in  the  surplus. 

The  doctrine  of  Wilson  v.  Davisson  was  applied  to  the  para- 
mount encumbrance  of  a  mortgage,  in  the  recent  case  of  Gruoe  v. 
Lilienthall,  51  S.  C.  442  (29  S.  E.  230),  and  the  wife  was  denied 
dower  in  the  surplus,  when  the  sale  was  made  during  coverture, 
for  the  following  reasons:  "As  the  wife,  by  her  act  of  renuncia- 
tion [i.  e.,  by  uniting  in  the  mortgage],  assisted  in  bringing  about 
a  change  of  seisin  by  which  her  right  of  dower  was  destroyed,  and 
by  which  the  surplus  proceeds  of  the  sale  became  the  property  of 
the  husband,  the  court  had  no  more  authority  for  impressing  a 
trust  upon  the  surplus  proceeds  of  sale  than  it  had  to  impress  a 
trust  on  any  other  personal  property  of  the  husband.  The  right  of 
dower  was  completely  extinguished  and  destroyed  when  the  seisin, 
during  coverture,  was  broken  by  aid  of  the  wife;  and  the  court 
had  no  power  to  transfer  the  right  to  the  surplus  proceeds  of  the 
sale."  And  see  the  query  as  to  the  effect  of  the  New  York  Statute 
in  Brackett  v.  Baum,  50  N.  Y.  8,  11. 

On  the  subject  of  "Dower  as  against  the  vendor's  lien  for  unpaid 
purchase-money,"  see  1  Scribner,  Dower,  pp.  554-561;  4  L.  R.  A. 
606,  note.  The  implied  vendor's  lien  was  abolished  in  Virginia  by 
statute  taking  effect  July  1,  1850.  It  enacts  as  follows  (Code  Va. 
§  2474) :  "If  any  person  hereafter  convey  any  real  estate,  and  the 
purchase-money,  or  any  part  thereof,  remain  unpaid  at  the  time  of 
conveyance,  he  shall  not  thereby  have  a  lien  for  such  unpaid  pur- 
chase-money, unless  such  lien  be  expressly  reserved  on  the  face  of 
the  conveyance."  But  this  statute  has  no  application  to  a  vendor 
iclio  does  not  convey,  but  retains  the  title  to  the  land  as  security 
for  the  unpaid  purchase-money.  2  Min.  Ins.  (4th  ed.)  355.  See 
p.  464,  supra,  note. 


§§302,303]  DOWER    AND    CURTESY.  493 

the  proceeds  of  sale  remain  after  satisfying  the  said  lien 
or  encumbrance,  she  shall  be  entitled  to  dower  in  the  said 
surplus;  and  a  court  of  equity  having  jurisdiction  of  the 
case  may  make  such  order  as  may  seem  to  it  proper  to  secure 
her  right."  See  Robinson  v.  Shachlett,  29  Gratt.  99;  Cowar- 
din  v.  Anderson,  78  Va.  88;  Coffman  v.  Coffman,  79  Va.  504; 
Hurst  v.  Dulaney,  87  Ya.  444;  Building  Co.  v.  Fray,  96 
Va.  559 ;  Holden  v.  Boggess,  20  W.  Va.  62. 

For  the  Kentucky  statute,  see  Tisdale  v.  Risk,  7  Bush. 
139;  Ratcliff  v.  Mason,  92  Ivy.  190  (17  S.  W.  438); 
Schweitzer  v.  Wagner  (Ky.),  22  S.  W.  883. 

§  303.  Dower  in  Equity  of  Redemption — Extent  of  in  the 
United  States. — As  to  the  extent  of  the  dower  right  in  the 
surplus  of  the  proceeds  of  land  sold  in  order  to  satisfy  an 
encumbrance  paramount  to  dower,  there  can  be  no  doubt 
that  it  would  be  confined  to  one-third  of  such  surplus 
in  every  case  except  one,  and  that  is  when  the  wife  has  united 
with  her  husband  in  a  mortgage  or  deed  of  trust  of  his  land 
to  secure  his  debt.  In  this  last  case,  it  has  been  claimed 
that  the  wife  stands  as  a  surety  merely  for  the  husband's 
debt;  and  that  while  as  between  her  and  the  mortgagee 
she  has  relinquished  her  dower  to  the  extent  that  may  be 
necessary  for  the  payment  of  the  secured  debt,  yet  as  be- 
tween her  and  the  husband's  heirs  or  devisees,  or  his  other 
creditors,  she  is  entitled  to  her  full  right  of  dower  in  the 
proceeds  of  the  mortgaged  land,  payable  of  course  out  of 
the  surplus;  and  this  though  thereby  the  whole  of  the  sur- 
plus may  be  appropriated  to  the  satisfaction  of  her  dower. 
The  doctrine  of  exoneration  of  a  surety  out  of  the  principal's 
(husband's)  estate  is  invoked  in  the  wife's  favor.  Thus  if 
the  mortgage  debt  is  $12,000,  and  the  proceeds  of  the  mort- 
gaged land  are  $18,000,  the  surplus  of  $6,000  would  be  ab- 
sorbed by  the  dower  of  the  widow,  being  her  full  dower 
right  in  the  whole  proceeds  of  the  land. 

The  doctrine  explained  above — that  the  widow  has  the 
right  of  a  surety — has  been  applied  in  the  later  cases  in 


494  REAL    PROPERTY.  [Chap.  14 

Ohio.  Thus  in  Mandel  v.  McClave,  46  Ohio  St.  407  (15 
Am.  St.  Eep.  627;  5  L.  E.  A.  519),  it  is  held  that  where  a 
wife  joins  with  her  husband  in  a  mortgage  of  his  land  to 
secure  his  debt,  such  release  of  her  right  of  dower  enures 
only  to  the  benefit  of  the  mortgagee  and  his  privies,  but 
does  not  enure  to  the  benefit  of  subsequent  creditors  of  her 
husband;  and  if  a  judicial  sale  be  made  under  judgments 
in  their  favor,  she  will  be  entitled  to  have  the  value  of 
her  contingent  right  of  dower  in  the  entire  proceeds  ascer- 
tained, and  to  have  the  same  paid  to  her  out  of  the  balance 
left  after  payment  of  the  mortgage  debt,  before  any  part  of 
such  balance  can  be  applied  to  the  payment  of  their  judg- 
ments.1 

1  Doctrine  of  Wife's,  Suretyship  in  Ohio — Same  Doctrine  in 
North  Carolina  and  Indiana. — In  Mandel  v.  McClave,  supra,  the 
court  thus  explains  the  decision:  "We  are  aware  that  this  ques- 
tion has  been  decided  differently  in  many  of  the  States,  but  by 
courts  holding  views  of  the  nature  of  contingent  dower,  and  of  the 
effect  of  the  wife's  release  thereof,  widely  different  from  those 
adopted  in  this  State  in  relation  thereto;  and  the  decisions  are 
therefore  of  little  or  no  weight  here.  ...  If  the  plaintiff  in  error 
[the  wife]  had  been  seised  of  a  separate  estate,  and  it  had  been 
pledged,  together  with  the  husband's  property,  for  the  payment  of 
his  debt,  there  can  be  no  doubt  that  his  property  would  be  pri- 
marily liable  for  its  payment.  As  between  each  other,  he  would 
be  the  principal,  and  she  his  surety.  We  think  the  same  principle 
should  be  applied  to  her  contingent  right  of  dower.  It  is  prop- 
erty; its  value  can  be  ascertained.  .  .  .  It  is  a  provision  for  her 
support;  and  when  she  pledges  it  for  her  husband's  debt,  by  join- 
ing in  a  mortgage  with  him,  the  most  obvious  principles  of  nat- 
ural justice  require  that  this  benevolent  provision  of  the  law 
should  not  be  touched  until  the  husband's  interest  has  been  first 
exhausted." 

In  North  Carolina  also  the  doctrine  that  the  wife  who  joins  in 
the  husband's  mortgage  becomes  his  surety  for  the  debt  is  adopted 
in  recent  cases.  For  the  widow's  dower  right  in  that  State,  see 
Askew  v.  Askew,  103  N.  C.  285  (9  S.  E.  646) ;  Gore  v.  Toivnsend, 
105  N.  C.  228  (11  S.  E.  160);  Overton  v.  Hinton,  123  N.  C.  1  (31  S. 
E.  285).  And  in  Indiana,  under  the  peculiar  statute  as  to  dower 
(see  infra,  § )  the  wife  of  a  mortgagor  who  unites  in  the  deed 


§303]  DOWER    AND    CURTESY.  495 

In  the  United  States  generally  (with  the  exception  of 
Xorth  Carolina  and  Indiana.  See  note  p.  476,  supra)  the 
Ohio  doctrine  that  the  wife  who  unites  in  her  husband's 
mortgage  becomes  a  surety  for  the  debt  is  rejected,  with  the 
result  that  she  is  entitled  to  dower  in  the  surplus  only  of  the 
proceeds  of  the  sale.  See  10  Am.  &  Eng.  Ency.  Law,  169, 
where  the  law  is  thus  stated :  '"The  general  rule  is  that  when 
the  husband  has  mortgaged  his  land  before  coverture,  or 
the  wife  during  coverture  has  united  with  him  in  mort- 
gaging land  belonging  to  him,  and  such  land  is  sold  under 
the  mortgage,  the  widow,  if  the  sale  takes  place  after  the 
death  of  the  husband,  and  the  wife,  if  the  sale  takes  place 
foefore  his  death  in  jurisdictions  where  the  inchoate  right 
of  dower  is  regarded  as  such  an  interest  as  must  be  protected, 
is  entitled  to  have  her  dower  assigned  or  reserved  from  the 

is  considered  a  surety  for  her  husband.  See  Virgin  v.  Virgin,  189 
111.  144  (59  N.  E.  586),  where  the  Indiana  law  is  explained  as  ex- 
ceptional, citing  Shobe  v.  Brinson,  148  Ind.  285  (47  N.  E.  625.) 

In  19  Am.  &  Eng.  Ency.  of  Law,  1321,  the  widow's  right  to  dower 
is  thus  laid  down:  "To  protect  the  right  of  dower,  the  rule  of  ex- 
oneration, either  as  an  equitable  principle  or  as  a  statutory  pro- 
vision, may  be  invoked  by  the  widow.  Thus,  where  the  wife  joined 
with  her  husband  in  a  mortgage  of  his  land,  she  is  entitled  after 
his  death  to  require  the  personal  representative  to  use  in  discharg- 
ing the  mortgage  all  other  assets  of  the  estate,  real  as  well  as  per- 
sonal, not  necessary  for  the  payment  of  debts  preferred  by  statute, 
so  that  her  dower  interest  may  be  taken  last  under  the  encum- 
brance. Under  this  rule,  the  personal  estate,  the  remaining  two- 
thirds  of  the  realty,  and  the  reversion  in  the  third  subject  to  her 
dower,  are  all  to  be  applied  to  the  payment  of  a  mortgage,  or  of 
purchase-money  due  in  respect  of  land  purchased  by  her  husband, 
before  her  share  shall  be  taken."  For  this  statement  of  the  law, 
only  Indiana  and  North  Carolina  cases  are  cited.  As  is  shown 
above,  the  doctrine  of  these  States  is  peculiar;  and  the  general 
doctrine  in  the  United  States,  both  as  to  other  lands  of  the  hus- 
band, and  as  to  the  interest  of  the  heir  in  the  mortgaged  land,  is 
far  less  liberal  to  the  widow.  See  §  303,  above,  for  the  general 
rule  as  to  the  extent  of  her  dower  in  an  equity  of  redemption. 
And  see  §  306,  infra,  as  to  her  right  of  exoneration  out  of  other 
lands  of  her  husband. 


496  REAL    PROPERTY.  [Chap.  14 

surplus  only,  after  paying  the  whole  amount  of  the  mortgage 
indebtedness.  The  dower  interest  should  be  confined,  to  one- 
third  of  the  value  of  the  excess  of  the  land,  after  deducting 
the  entire  amount  owing  upon  the  mortgage."  And  see  1 
Scrib.,  Dower,  516. 

The  reason  for  the  general  rule  which  confines  the  widow 
to  one-third  of  the  surplus  is  thus  stated  by  Chancellor  Wal- 
worth in  Hawley  v.  Bradford,  9  Paige,  200  (37  Am.  Dec. 
390)  :  "It  is  settled  law  that  where  the  wife  pledges  her 
separate  estate,  or  the  reversionary  interest  in  her  real  prop- 
erty, for  the  debt  of  her  husband,  she  is  entitled  to  the 
ordinary  rights  and  privileges  of  a  surety.  ...  I  am 
not  aware  of  any  decision,  however,  in  which  the  principle 
of  suretyship  has  been  applied  to  a  case  like  the  present. 
.  .  .  Strictly  speaking,  the  wife  has  no  estate  or  interest 
in  the  lands  of  her  husband  during  his  life  which  is  capable 
of  being  mortgaged  or  pledged  for  the  payment  of  his  debt. 
Her  joining  in  the  mortgage,  therefore,  merely  operates  by 
way  of  release  or  extinguishment  of  her  future  claim  to 
dower  as  against  the  mortgagee,  if  she  survives  her  husband, 
without  impairing  her  contingent  right  of  dower  in  the 
equity  of  redemption.  The  master,  therefore,  was  right  in 
supposing  that  Mrs.  Bradford  was  not  entitled  to  be  endowed 
of  the  whole  proceeds  of  the  mortgaged  premises,  but  only 
of  the  surplus  which  remained  after  paying  the  mortgage 
debt  and  the  costs  of  foreclosure."  And  see  to  the  same 
effect  Bank  of  Commerce  v.  Owens,  31  Md.  320  (1  Am.  Bep. 
60)  ;  Burnett  v.  Burnett,  16  K  J.  Eq.  144,  18  Atl.  374 
(examining  and  rejecting  the  Ohio  doctrine)  ;  Virgin  v.  Vir- 
gin, 189  111.  144,  59  N".  E.  586  (quoting  and  approving  the 
general  rule  as  laid  down  in  10  Am.  &  Eng.  Ency.  Law  on 
p.  477,  supra). 

§  304.  Extent  in  Virginia  of  Dower  in  Equity  of  Redemp- 
tion.—Whether  the  widow  is  entitled  to  dower  in  the  whole 
proceeds,  payable  out  of  the  surplus,  or  is  dowable  of  the 
surplus  only,  is  unsettled  in  Virginia,  both  when  the  land  is 


§§303,304]  DOWER    AND    CURTESY.  497 

sold  in  the  life  of  the  husband,  and  when  the  sale  takes  place 
after  the  husband's  death.  See  Land  v.  Shipp,  98  Va.  284, 
293.1 

When  the  land  is  sold  in  the  lifetime  of  the  husband,  the 
Code  (§  2269)  places  the  case  where  the  wife  unites  with 
the  husband  in  the  deed  creating  the  lien  or  encumbrance 
along  with  that  of  a  lien  or  encumbrance  "created  before  the 

1  Extent  of  Widow's  Dower  Right  in  Virginia — Decision  in 
Wilson  v.  Branch. — The  only  case  in  Virginia  which  favors  the 
right  of  the  widow,  when  she  has  joined  her  husband  in  a  mort- 
gage or  deed  of  trust  on  his  land  to  secure  his  debt,  to  her  full 
right  of  dower  as  against  the  heir,  and  that  in  the  land  itself,  is 
Wilson  v.  Branch,  11  Va.  65.  But  it  is  respectfully  submitted  that 
this  case  is  contrary  to  authority  and  unsound  on  principle. 

In  Wilson  v.  Branch,  supra,  there  were  two  estates  in  land  in- 
volved, halves  of  an  undivided  tract  called  Cedar  Lawn,  one-half 
belonging  to  the  husband,  and  (under  the  decision  of  the  Court  of 
Appeals)  the  other  half  belonging  to  the  wife,  when  the  deed  of 
trust  of  1876  was  made,  by  husband  and  wife  jointly,  to  secure 
the  husband's  debt.  As  to  the  wife's  half,  she  was,  of  course,  a 
surety  for  the  husband;  and,  as  was  said  by  the  Court  of  Appeals 
(p.  74):  "The  Circuit  Court  erred  in  decreeing  the  sale  of  the 
Cedar  Lawn  tract  without  first  dividing  the  same,  so  as  to  save  the 
wife  her  undivided  moiety,  which  was  her  maiden  property."  But 
the  lower  court  is  also  said  to  have  erred,  "in  selling  the  residue 
[i.  e.,  the  husband's  half]  without  laying  off  and  assigning  to  the 
widow  her  dower  in  kind  by  metes  and  bounds,  or  first  ascertain- 
ing that  it  was  impracticable  to  so  assign  the  dower."  See  p.  74. 
And  on  p.  69,  it  is  said  (without,  however,  at  this  point  distin- 
guishing between  the  two  halves,  and  apparently  conceding  for  the 
moment  that  the  Circuit  Court  was  right  in  its  view  that  in  1876 
when  the  trust  deed  was  made  all  the  land  belonged  to  the  hus- 
band) :  "It  does  not  appear  that  dower  could  not  be  assigned,  and 
the  residue  sold  to  secure  the  creditor  secured  by  the  trust  deed, 
with  the  right  reserved  to  proceed  further  against  the  dower  if 
the  trust  deed  debt  was  still  unsatisfied." 

There  seems  no  doubt,  from  the  above  extracts,  that  the  court 
supposed  the  widow  was  entitled  to  full  dower,  and  in  the  land 
itself,  and  that  it  was  not  to  be  sold  under  the  deed  of  trust  unless 
it  became  necessary  to  trench  upon  it  to  pay  the  secured  creditor. 
But  there  is  not  one  word  of  discussion  as  to  the  extent  of  the 

32 


498  REAL.    PROPERTY.  [Chap.  14 

marriage,  or  otherwise  paramount  to  the  wife,"  and  declares 
as  to  all  alike  that  "if  a  surplus  of  the  proceeds  of  sale 

widow's  dower  right.  The  mind  of  the  court  is  entirely  on  the 
point  of  dower  in  kind.  This  it  declares  practicable,  having  re- 
gard to  the  relative  amounts  of  the  value  of  the  land  and  of  the 
deU  secured.  And  three  Virginia  cases  are  relied  on,  viz.:  Blair 
v.  Thompson,  11  Gratt.  441;  White  v.  White,  16  Gratt.  264;  and 
Simmons  v.  Lyle,  27  Gratt.  922,  which  do  declare  that  the  widow 
must  have  dower  in  kind  unless  it  be  impracticable  from  "the  na- 
ture of  the  husband's  interest,  or  from  the  nature  and  quality  of 
the  property  itself,"  but  not  a  word  is  said  in  them  as  to  relative 
amounts.  And  in  all  of  these  three  cases,  the  widow's  dower  was 
paramount  to  the  encumbrance,  and  of  course  she  was  entitled  to 
dower  in  kind,  if  practicable,  having  regard  to  the  nature  of  the 
husband's  interest  and  of  the  property. 

This  part  of  the  decision  in  Wilson  v.  Branch,  then,  finds  no 
support  in  any  of  the  Virginia  cases  cited,  and  is  opposed  to  an  al- 
most unbroken  current  of  authority  elsewhere.  The  cases  in  Ohio 
to  the  contrary,  Mandel  v.  McClave  (where  the  sale  was  in  the  hus- 
band's lifetime),  and  Kling  v.  Balleniine  (cited  therein,  where  the 
sale  was  after  the  husband's  death)  are  avowedly  placed  on  the 
theory  of  the  wife's  suretyship  for  her  husband,  and  it  is  conceded 
that  where  that  doctrine  is  repudiated  (as  it  is  in  Virginia)  the 
result  must  be  to  confine  the  widow  to  one-third  of  the  surplus. 
And  the  peculiar  doctrine  in  Indiana  and  North  Carolina  is  also 
placed  on  the  ground  of  suretyship.     See  p.  476,  supra,  note. 

In  Heth  v.  Cocke,  1  Rand.  (Va.)  344,  it  is  held  that  the  only 
claim  of  the  widow  in  her  husband's  real  estate  which  has  been 
mortgaged  by  him  before  the  marriage  is  in  the  equity  of  redemp- 
tion; and  it  is  declared  that  the  same  principle  applies  as  well  to 
a  mortgage  after  marriage  where  the  wife  unites  with  her  hus- 
band. And  on  p.  347,  it  is  said:  "If  neither  the  heir  nor  the 
widow  redeem,  and  the  land  sells  for  more  than  the  debt,  the  ex- 
cess is  the  value  of  the  equity  of  redemption,  and  she  can  only  be 
endowed  as  to  one-third  of  that  excess."  And  on  p.  348  it  is  said: 
"Suppose  she  had  been  defendant  in  this  suit,  could  she  have 
claimed  to  have  her  dower  laid  off  and  the  residue  sold?  I  appre- 
hend the  mortgagee  could  not  have  been  compelled  to  sell  in  par- 
cels. .  .  .  But  if  he  could  have  been  paid  in  this  way,  could  the 
heir  be  thus  deprived  of  his  interest  in  the  equity  of  redemption? 
The  two-thirds  may  only  sell  for  enough  to  pay  the  debt,  and  sell 
too  at  a  great  sacrifice  in  consequence  of  a  severance  of  the  prop- 
erty." 


§  304]  DOWER    AND    CURTESY.  499 

remain  after  satisfying  the  said  lien  or  encumbrance,  she 
shall  be  entitled  to  dower  in  said  surplus" — which  clearly 
confines  her  dower  interest  to  one-third  of  the  surplus.  See 
§  303,  supra.  And  that  the  law  is  the  same  in  Virginia 
(in  accord  with  the  general  rule  laid  down  above),  when  the 
sale  is  made  after  the  death  of  her  husband,  would  seem  to 
be  indicated  (so  far  as  the  opposite  view  rests  upon  the 
doctrine  of  suretyship)  by  the  ease  of  Gatewood  v.  Gateivood, 
75  Va.  407,  415,  when  it  is  said  by  Staples,  J.,  that  a  mar- 
ried woman  who  joins  in  a  mortgage  by  the  husband  on  his 
lands  is  not  a  surety  for  the  debt;  and  also  by  the  following 
language  of  the  same  learned  judge  in  Corr  v.  Porter,  33 
Graft.  278,  285 :  "During  the  life  of  the  husband,  the  wife 
has  no  estate  or  interest  in  his  lands.  She  has  a  mere  con- 
tingent right  of  dower  which  may  be  the  subject  of  a  con- 
veyance or  relinquishment  under  the  statute.  It  may  also 
constitute  a  valuable  consideration  for  a  post-nuptial  settle- 
ment, because  it  is  in  the  nature  of  a  contingent  lien  or 
encumbrance  upon  the  realty.  Beyond  this,  however,  it  is 
not  even  a  right  in  action.  When  the  wife  unites  with  the 
husband  in  conveying  the  property  to  a  purchaser,  the  effect 
is  not  to  vest  in  the  latter  the  dower  interest,  or  any  estate 
separate  and  distinct  from  that  of  the  husband,  but  simply 
to  relinquish  a  contingent  right  in  the  nature  of  an  encum- 
brance upon  the  property  conveyed,  which,  if  not  so  relin- 
quished, will  attach  and  be  consummate  on  the  death  of  the 
husband.  This  right  being  relinquished  is  gone  forever,  the 
charge  upon  the  estate  ceases,  and  the  title  of  the  purchaser 
becomes  complete.  The  title  so  acquired  is  not  to  two  estates 
or  interests,  that  of  the  husband  and  wife,  but  to  one  estate, 
that  of  the  husband,  discharged  from  the  wife's  contingent 
claim  of  dower."    And  see  p.  438,  supra,  note. 

But  where  a  wife  unites  with  her  husband  in  conveying 
her  maiden  lands  in  trust  to  secure  the  individual  debts  of 
her  husband,  then  the  wife  becomes  the  surety  of  her  hus- 
band, and,  in  the  absence  of  any  agreement  to  the  contrary, 
is  entitled  to  all  the  rights  of  a  surety.     Filler  v.  Tyler,  91 


500  REAL    PROPERTY.  [Chap.  14 

Va.  458.  And  see  the  same  doctrine  laid  down  by  Chan- 
cellor Walworth  in  Hawley  v.  Bradford,  9  Paige,  199,  quoted 
at  p.  478,  supra. 

§  305.  Exoneration  of  Dower  in  Mortgaged  Land  out  of 
th  Husband's  Personalty. — In  Hewitt  v.  Cox,  55  Ark.  225 
(15  S.  W.  1026,  17  S.  W.  873)  it  is  said  of  the  decisions 
of  the  American  courts  on  this  subject:  "They  differ 
as  to  her  right  to  require  the  executor  or  administrator 
to  redeem  the  land  set  apart  to  her  as  dower  from  incum- 
brances thereon  which  are  created  by  mortgages  executed  by 
her  and  her  husband  to  secure  his  debts,  she  having  relin- 
quished her  right  to  dower  in  the  land  in  legal  form.  One 
class  holds  that  the  personal  estate  of  the  husband  is  pri- 
marily liable  for  his  debts,  and  that  the  widow  can  require 
his  personal  representative  to  apply  that  estate  to  relieving 
the  dower  land  from  the  incumbrance.  Campbell  v.  Camp- 
bell, 30  N".  J.  Eq.  415;  Henagan  v.  Harllee,  10  Rich.  Eq. 
(S.  C.)  285;  KlincJc  v.  KecMey,  2  Hill  Eq.  (S.  C.)  250; 
Mantz  v.  Buchanan,  1  Md.  Ch.  202;  Harrow  v.  Johnson, 
3  Mete.  (Ky.)  578;  Matthewson  v.  Smith,  1  Ang.  (R.  I.) 
23  Beckham  v.  Hadwen,  8  R.  I.,  160;  Campbell  v.  Mur- 
phy, 2  Jones,  Eq.  (K.  C.)  357;  Creecy  v.  Bearce,  69  N.  C. 
67;  Mandel  v.  McClave,  46  Ohio  St.  407  (22  N.  E..  290); 
Boynton  v.  Sawyer,  35  Ala.  497.  Another  class,  eliminating 
the  interest  of  the  mortgagee  in  the  land,  and  treating  the 
residue  as  the  entire  interest  of  the  husband,  holds  that  the 
widow  is  only  entitled  to  dower  in  that  interest — that  is  to 
say  in  the  equity  of  redemption;  and  treats  her  dower 
interest,  to  the  extent  of  the  debt  secured,  as  extinguished  by 
her  joining  her  husband  in  the  execution  of  the  mortgage, 
and  releasing  or  relinquishing  her  right  of  dower ;  and  holds 
that  she  takes  the  land  subject  to  the  mortgage  [i.  e.,  when 
she  receives  her  dower  in  the  land],  and  is  not  entitled  to 
have  any  part  in  the  residue  of  her  husband's  estate  appro- 
priated to  the  satisfaction  of  the  mortgage  in  exoneration 
of  her  dower.     Hawley  v.  Bradford,  9  Paige  (N.  Y.)   200; 


§§  304, 305]  DOWER    AND    CURTESY.  501 

Tabele  v.  Tabele,  1  Johns.  Ch.  (N.  Y.)  45;  Titus  v.  Neilson, 
5  Id.  451;  Evertson  v.  Tappen,  Ibid,  497;  Whitehead  v. 
Cummins,  2  Cart.  (Ind.)  58;  Z>am'eZ  v.  Leitch,  13  Gratt. 
(Va.)  195;  Trowbridge  v.  Sijpher,  55  la.  352  (7  N".  W. 
567) ;  Bank  v.  ffwfra,  21  Ohio  509;  Scott  v.  Hancock,  13 
Mass.  162;  Otfaon  v.  Crehore,  3  Pick  (Mass.)  475;  s.  c. 
5  Id.  146;  Rossiter  v.  Cossitt,  15  N.  H.  38;  Hastings  v. 
Stevens,  9  Post.  (N.  H.)  564;  Appeal  of  Piatt,  56  Conn. 
572  (16  Atl.  669)  4  Kent.  Com.  (12th  ed.)  pp.  46,  47; 
1  Scrib.,  Dower  (2d  ed.)  511-516;  1  Jones,  Mortg.  (4th 
ed.)  §§  666,  686;  2  Jones,  Mortg.  §  1693." 

The  court  rejected  the  claim  that  the  wife  was  a  surety 
for  the  husband,  saying:  "But  it  is  contended  that  Mrs. 
Hewitt  never  released  her  dower  to  her  husband,  or  to  his 
administrator,  or  devisees,  but  only  to  the  mortgagee  as 
security  for  the  payment  of  a  single  debt  of  the  husband, 
for  which  she  did  not  bind  herself  personally;  and  that 
therefore  the  personal  assets  of  the  estate  of  the  husband, 
the  principal,  should  be  exhausted  before  that  of  the  surety 
should  be  taken.  The  fallacy  of  this  contention  consists  in 
assuming  that  the  wife  has  an  estate  or  interest  in  the  lands 
of  the  husband  during  his  life  which  she  can  mortgage  as 
her  own  separate  estate.  In  speaking  of  the  interest  of  the 
wife  in  the  husband's  lands  in  Smith  v.  Howell,  53  Ark.  279 
(13  S.  W.  929),  calling  it  an  'inchoate  right  of  dower,'  this 
court  said :  'The  inchoate  right  of  dower  during  the  lifetime 
of  the  husband  is  not  an  estate  in  land ;  it  is  not  even  a  vested 
right,  but  a  mere  intangible,  inchoate  contingent  expectancy. 
The  law  regards  it  as  in  the  nature  of  an  incumbrance  on 
the  husband's  title,  and  the  statute  cited  provides  a  means 
whereby  he  may  convey  his  title  free  from  the  incumbrance. 
She  joins  not  to  alienate  any  estate,  but  to  relinquish  a  future 
contingent  right.' "  And  see,  in  accord  with  this  view,  of 
the  nature  of  inchoate  dower,  p.  438,  supra,  note. 

In  the  above  extract  it  is  assumed  that,  as  the  wife  who 
unites  in  her  husband's  mortgage  cannot  be  considered  a 
surety  for  his  debt,  she  is  therefore  not  entitled  to  claim 


502  REAL.    PROPERTY.  [Chap.  14 

exoneration  of  her  dower  out  of  his  personalty.  This,  how- 
ever, does  not  necessarily  follow.  The  true  view  would  seem 
to  be  that  as  to  the  equity  of  redemption  the  widow  and  the 
husband's  heir  or  devisee  are,  so  far  as  their  respective  inter- 
ests are  concerned,  in  consimili  casu;  and  whatever  right  of 
exoneration  the  heir  or  devisee  may  have  must  redound  to 
the  benefit  of  the  widow.  Now  it  is  certain  (where  the  rule 
has  not  been  changed  by  statute)  that  in  the  administration 
of  the  assets  of  a  solvent  estate  the  heir  or  devisee  of  mort- 
gaged land,  provided  the  debt  secured  is  the  personal  debt 
of  the  testator  or  intestate,  is  entitled  to  have  the  mortgage 
debt  paid  out  of  the  personalty;  or,  if  the  mortgagee  (as  of 
right  he  may)  has  subjected  the  mortgaged  land  to  the  pay- 
ment of  his  debt,  then  the  heir  or  devisee  is  entitled  to 
exoneration  out  of  the  personalty.  It  would  seem,  on  prin- 
ciple, impossible  to  deny  to  the  widow  the  same  right  of 
exoneration;  and  this  not  because  she  is  a  surety  for  her 
husband,  but  because  she  has  a  dower  right  in  land  entitled 
to  exoneration  out  of  his  personalty.  But  if  the  husband 
dies  insolvent,  all  his  estate  is  liable  for  his  debts,  save  only 
the  widow's  dower  in  the  surplus  of  the  proceeds  of  the 
mortgaged  land;  and  of  course  no  further  right  of  dower 
can  accrue  to  her  by  reason  of  hex  relation  to  the  heir  or 
devisee.1 

1  Exoneration  of  Dowee  out  of  Personalty  as  Against  a  Pecu- 
niary Legatee.— In  Todd  v.  McFall,  96  Va.  754  (32  S.  E.  472)  it 
was  held  that  "a  legatee  has  no  right  to  call  upon  the  devisees  to 
contribute  to  the  legacy,  unless  the  real  estate  be  charged  with  its 
payment,  not  even  where  the  personal  property  has  been  applied 
in  exoneration  of  the  land  from  a  mortgage  debt  or  vendor's  lien, 
if  the  debt  was  contracted,  and  the  mortgage  or  lien  on  the  land 
was  created,  by  the  testator  himself."  The  facts  of  the  case  show 
that  the  court  means  (and  it  was  so  held)  that  where  there  is  no 
general  charge  for  the  payment  of  debts,  and  the  legacy  is  not 
charged  on  the  land,  a  pecuniary  legacy  is  payable  primarily  out 
of  the  personalty  only;  and  though  the  personalty  is  exhausted  in 
payment  of  a  mortgage  or  vendor's  lien  on  land  specifically  de- 
vised, this  does  not  entitle  the  legatee  to  exoneration  out  of  such 


§  305]  DOWER    AND    CURTESY.  503 

From  the  authorities  cited  above  in  the  quotation  from 
Hewitt  v.  Cox,  it  will  be  seen  that  a  number  of  States  which 

land  to  the  extent  of  the  encumbrance  satisfied  out  of  the  per- 
sonalty. 

If  this  be  the  law,  it  is  manifest  that  it  has  an  important  bear- 
ing on  the  dower  right  of  the  widow  of  such  devisee  of  encum- 
bered land.  For  if  the  devisee  has  exoneration  out  of  the  per- 
sonalty, without  liability  over  to  the  pecuniary  legatee,  the  widow 
of  the  devisee  would  share  the  benefit  of  such  exoneration,  and 
thus  be  let  in  to  her  full  dower  in  the  land.  On  the  other  hand,  if 
the  legatee  has,  to  the  extent  that  the  personalty  is  exhausted  in 
paying  off  the  encumbrance,  a  right  to  exoneration  out  of  the  en- 
cumbered land  devised,  it  is  manifest  that  neither  the  devisee  nor 
widow  will  ultimately  reap  any  benefit  from  the  application  of  the 
personalty  to  the  satisfaction  of  the  lien — unless,  indeed,  the  per- 
sonalty so  applied  be  more  in  value  than  is  needed  to  pay  the 
legacy. 

It  is  believed,  however,  that  the  doctrine  of  Todd  v.  McFall  is 
contrary  to  the  weight  of  authority,  and  that  a  pecuniary  legatee 
is  entitled  to  exoneration  out  of  land  devised  subject  to  a  mort- 
gage or  vendor's  lien,  to  the  extent  that  the  personalty  has  been 
applied  to  the  satisfaction  of  the  encumbrance. 

Of  course,  it  is  well  settled  that  a  pecuniary  legatee  is  not  en- 
titled to  exoneration  out  of  land  devised,  neither  encumbered,  nor 
under  a  general  charge  for  the  payment  of  debts;  but,  in  the  case 
now  under  consideration,  the  question  is  as  to  exoneration  in  favor 
of  such  legatee  out  of  land  devised  indeed,  but  on  which  there  is 
the  specific  encumbrance  of  a  mortgage  or  vendor's  lien  for  the 
personal  debt  of  the  testator.  In  this  case  it  is  now  settled  law  in 
England  and  in  the  United  States  (outside  of  Massachusetts  and 
Virginia)  that  the  legatee  is  entitled  to  exoneration  out  of  such 
land  as  against  the  devisee.  See  19  Am.  &  Eng.  Ency.  Law  (2d 
ed.)  1311;  1322;  1325;  1326.  And  the  law  is  the  same  as  to  both 
mortgage  and  vendor's  lien.  Ibid,  1376.  As  to  the  Massachusetts 
rule,  see  Brown  v.  Baron,  162  Mass.  56  (44  Am.  St.  Rep.  331), 
where  the  case  is  decided  on  "the  well  settled  rule  in  this  common- 
wealth that  the  devisee  of  specific  real  estate  is  entitled,  in  the  ab- 
sence of  a  contrary  intention  on  the  part  of  the  testator,  to  have  it 
exonerated  from  a  mortgage  placed  upon  it  by  the  testator,  even 
though  the  personal  estate  is  insufficient  to  pay  general  legacies" 
[citing  only  Massachusetts  cases]. 

Of  the  cases  cited  in  Todd  v.  McFall  on  the  question  under  dis- 


504 


REAL,    PROPERTY.  [Chap.  14 


deny  to  the  widow  dower  save  in  the  surplus  of  the  mortgaged 
land  nevertheless  accord  to  her  a  right  of  exoneration  of  her 
dower  out  of  the  personalty.  And  some  of  the  cases  cited 
as  denying  the  widow  exoneration  out  of  the  personalty  are 
cases  in  which  the  estate  of  the  husband  was  insolvent;  or 
in  which  the  debt  was  not  personal  to  the  husband,  as  where 

cussion,  Wythe  v.  Henniker,  2  Myl.  &  K.  is  in  point,  and  as  to  the 
encumbrance  of  a  vendor's  lien  sustains  the  decision  of  the  court. 
But  as  to  a  mortgage  (which  in  Todd  v.  McFall  is  treated  as  under 
the  same  rule  as  a  vendor's  lien),  the  decision  is  express  that  the 
legatee  is  entitled  to  exoneration.  The  court  declares  it  to  be  "a 
settled  rule  of  courts  of  equity  that  a  pecuniary  legatee  is  entitled 
to  stand  upon  the  devised  estate  in  the  place  of  the  mortgagee,  to 
the  extent  that  the  mortgage  has  been  satisfied  out  of  the  personal 
estate."  And  as  to  the  contrary  ruling  in  that  case  as  to  a  ven- 
dor's lien  it  is  said  by  Lord  Romilly  in  Lilford  v.  Poicys  Keck,  1 
L.  R.  Eq.  Cas.  347:  "I  was  of  the  opinion  in  Birds  v.  Askey  that 
in  respect  of  the  legatee's  right  of  marshalling  the  distinction  be- 
tween a  lien  and  a  mortgage  is  untenable,  and  I  am  still  of  that 
opinion.  The  legatees  are  entitled  to  stand  in  the  place  of  the 
vendor  in  respect  of  his  lien  against  the  estate  which  the  testator 
agreed  to  purchase."  And  see  2  Jarman  on  Wills  (Bigelow's  ed.) 
580,  where  it  is  said:  "It  is  clear  that  the  devisee  of  a  mortgaged 
estate  cannot  claim  exoneration  as  against  pecuniary  legatees." 
Also  Ibid,  629,  where  the  law  is  laid  down  as  now  the  same  as  to 
the  devisee  of  land  subject  to  a  vendor's  lien. 

To  sum  up  the  matter:  It  is  believed  that  in  the  order  in  which 
a  testator's  assets  are  to  be  applied  to  the  payment  of  his  debts 
(see  Elliott  v.  Carter,  9  Gratt.  (Va.)  548;  Frasier  v.  Littleton,  40 
S.  E.  (Va.)  108)  lands  devised  on  which  there  is  a  mortgage  or 
vendor's  lien  are  liable  before  general  pecuniary  legacies.  See 
Adams  Eq.  8th  ed.  (275),  where  it  is  said:  "An  entire  or  partial 
exhaustion  of  the  personal  estate  [i.  e-,  in  the  payment  of  debts] 
will  warrant  marshalling  in  favor  of  legatees;  but  such  marshall- 
ing can  only  be  directed  against  real  assets  descended,  lands  de- 
vised for,  or  charged  with,  the  payment  of  debts,  and  land  devised 
subject  to  a  mortgage  [in  a  note  it  is  added,  "or  subject  to  the  ven- 
dor's lien  for  purchase-money  which  the  personalty  is  taken  to 
pay"].  It  cannot  be  directed  against  land  devised  or  against 
specific  legatees."  And  see  in  accord  1  Lead.  Cas.  Eq.  (4th  Am. 
ed.)  473,  note  to  Mackreth  v.  Symmons;  2  Id.  245,  340. 


§§305,306]  DOWER    AND    CURTESY.  505 

the  land  comes  to  him  already  encumbered.  This  was  the 
case  in  Daniel  v.  Leiteh,  13  Gratt.  (A7a.)  195,  207,  where 
the  clear  implication  from  the  language  of  the  court  is  that 
if  the  debt  had  been  personal,  and  the  estate  solvent,  the 
widow  would  have  been  entitled  to  exoneration  out  of  the 
personalty.  As  to  when  a  debt  is  "personal,"  see  Pleasants 
v.  Flood,  89  Va.  96.  It  may  be  added  that  by  statute  in 
England  (called  Locke's  King's  Act,  passed  in  1854,  with  sub- 
sequent amendments),  both  mortgaged  lands  and  lands  sub- 
ject to  a  vendor's  lien  are  made  in  all  cases  the  primary 
fund  for  the  payment  of  the  encumbrance,  and  exoneration 
is  denied  the  heir  or  devisee.  See  Wms.  E.  P.  (17th  ed.) 
610;  2  Jarman,  Wills  (Bigelow's  ed.  590).  Of  course, 
under  this  statute,  the  widow's  dower  is  not  entitled  to  ex- 
oneration, since  her  right  can  rise  no  higher  than  that  of  the 
heir  or  devisee. 

§  306.  Exoneration  of  Dower  in  Mortgaged  Land  out  of 
the  Husband's  Other  Land. — In  1  Scribner,  Dower,  511,  the 
following  language,  based  on  the  English  decisions,  is  quoted 
from  Park  on  Dower,  351)  :  "A  dowress,  like  an  heir  or  dev- 
isee, has  of  course  a  right  to  have  the  personal  estate  of  her 
husband,  as  far  as  it  will  go,  applied  in  discharge  of  mort- 
gages, and  other  debts  contracted  by  the  husband  which  are 
charges  upon  the  land  which  she  holds  in  dower.  And  even 
where  the  personal  estate  is  insufficient  to  discharge  the  debt, 
it  would  seem  that  in  some  cases,  if  not  in  all,  she  has  the 
privilege  of  having  the  lands  which  remain  in  the  heir  charged 
therewith,  in  exoneration  of  the  land  assigned  to  her  in 
dower."  Scribner  adds  this  comment,  before  reviewing  the 
American  decisions :  "In  the  United  States  the  cases  on  this 
subject  are  somewhat  conflicting,  but  the  weight  of  authority 
seems  to  be  rather  against  the  English  doctrine." 

As  to  exoneration  out  of  personalty  in  the  United  States, 
see  §  305,  supra.  As  to  exoneration  out  of  realty,  the  law  is 
thus  laid  down  in  2  Min.  Ins.  142 :  "But  if  the  debt  were  one 
contracted  by  the  husband  himself,  and  the  creditor's  lien  is 


506  REAL    PROPERTY.  [Chap.  14 

paramount  to  the  dower,  the  dowress  is  entitled  to  have  the 
incumbrance,  created  by  the  husband,  cleared  off  out  of  the 
husband's  personalty,  in  the  hands  of  his  personal  representa- 
tive; and,  if  that  be  insufficient,  out  of  the  lands  in  the  hands 
of  the  husband's  heir  or  devisee.  In  the  latter  case,  therefore, 
the  wife  [widow]  is  not  called  upon  to  contribute  anything 
to  pay  the  annual  interest  [i.  c,  when  dower  in  the  encum- 
bered land  has  been  assigned  to  her]  until  the  personalty  and 
the  other  lands  of  the  husband  are  exhausted.  1  Tho.  Co.  Lit. 
568,  n.  (B.);  1  Bright,  H.  &  Wife,  344,  387-'S;  Heth  v. 
Cocke,  1  Band.  344."'" 

It  will  be  perceived  that  Prof.  Minor's  statement  of  the 
law  goes  beyond  that  of  Park  in  giving  to  the  widow  exonera- 
tion not  only  out  of  the  personalty  and  lands  descended  to  the 
heir,  but  even  out  of  other  lands  in  the  hands  of  the  hus- 
band's devisee.  The  only  one  of  Prof.  Minor's  references  which 
refers  to  exoneration  is  1  Bright  H.  &  Wife,  388,  where  it  is 
said :  "But  it  is  presumed  that  as  against  her  husband's 
general  estate  she  would  be  entitled  to  have  her  dower  exon- 
erated from  such  encumbrances;  for  since  her  husband's  heir 
or  devisee  of  the  dowable  estate  would  be  entitled  to  that 
equity,  so,  as  it  is  conceived,  would  the  widow  also  be."  But 
it  is  manifest  that  by  "general  estate"  is  here  meant  "the 
general  personal  estate,  not  expressly  or  by  implication  ex- 
empted" (see  Bisph.  Eq.  §  346)  ;  for  it  is  only  out  of  this 
estate  (leaving  out  of  consideration  "any  estate  particularly 
devised  simply  for  the  payment  of  debts")  (see  §  108  supra) 
that  "her  husband's  heir  or  devisee"  (meaning  both  heir  and 
devisee)  are  entitled  to  exoneration." 

On  principle,  it  would  seem  to  be  impossible  to  allow  the 
widow  (whether  the  mortgaged  land  has  descended  to  the  heir 
or  has  been  devised)  exoneration  out  of  other  lands  of  the 
husband  in  the  hands  of  the  devisee.  For  the  widow's  right 
of  exoneration  (assuming  that  the  true  doctrine  is  that  she 
is  not  a  surety)  cannot  exceed  that  of  the  heir  or  devisee 
of  the  mortgaged  land ;  and  it  is  well  settled  that  such  heir  or 
devisee  is  not  entitled   (unless  the  testator  has  by  his  will 


§306]  DOWER    AND    CURTESY.  507 

charged  all  his  lands  with  the  payment  of  his  debts)  to  ex- 
oneration of  the  mortgaged  debt  out  of  other  real  estate  spe- 
cifically devised.  See  §  108,  supra,  for  order  in  which  assets 
are  liable  for  the  payment  of  debts,  in  which  table  land  de- 
scended subject  to  a  mortgage  for  the  personal  debt  of  the 
decedent  should  be  placed  after  land  devised  for  the  payment 
of  debts,  and  land  devised  on  which  there  is  a  mortgage  comes 
immediately  after  land  descended  to  the  heir;  so  that  in  nei- 
ther case,  whether  descended  or  devised,  could  such  mort- 
gaged land  be  entitled  to  exoneration  out  of  other  lands  de- 
vised. See  Adams  Eq.  (8th  ed.)  253;  19  Am.  &  Eng.  Ency. 
Law,  13-22;  Frasier  v.  Littleton  (Va.)  40  S.  E.  108.  The 
widow  is,  of  course,  do w able  of  other  lands  of  her  husband  in 
the  hands  of  a  devisee,  in  addition  to  her  dower  in  the  equity 
of  redemption  of  the  land  mortgaged ;  and  she  might  consent 
to  waive  her  dower  in  such  other  lands  on  condition  that  the 
devisee  should  discharge  the  mortgage,  and  thereby  enable  her 
to  receive  her  full  dower  in  the  encumbered  land.  But  this 
would  be  a  matter  of  agreement  between  the  widow  and  the 
devisee,  and  a  very  different  thing  from  her  having  a  right  of 
exoneration  as  against  him.  See  Scott  v.  Hancock,  13  Mass. 
162,  168;  Appeal  of  Piatt,  56  Conn.  572  (16  Atl.  668). 

But  both  Park  and  Prof.  Minor  declare  that  a  widow  is 
entitled  to  exoneration  of  a  mortgage  out  of  other  land  de- 
scended to  the  heir.  But,  assuming  again  that  the  widow  is 
not  a  surety,  this  would  seem  to  depend  on  whether  the  mort- 
gaged land  is  in  the  hands  of  the  heir  or  a  devisee.  For  if 
in  the  hands  oi  the  heir,  there  could  be  no  exoneration  as  to 
him  out  of  other  lands  descended,  and  so  no  such  right  would 
be  permitted  the  widow;  but  she  would,  of  course,  be  entitled 
to  her  dower  in  such  other  lands.  But  if  the  mortgaged  land 
is  in  the  hands  of  a  devisee,  then  such  devisee  is  entitled  to 
exoneration  of  the  mortgage  out  of  other  lands  descended  to 
the  heir,  and  this  would  entitle  the  widow  to  claim  the  benefit 
of  such  exoneration  in  order  to  admit  her  to  her  full  dower  in 
the  mortgaged  land.  But  she  is  also  entitled  to  dower  as 
against  the  heir  in  the  lands  descended.   Is  she  then  entitled 


508  REAL    PROPERTY.  [Chap.  14 

to  throw  the  whole  burden  of  exoneration  on  the  heir's  in- 
terest in  the  land  descended,  so  as  to  have  her  full  dower  both 
as  against  the  heir  and  the  devisee?  On  principle,,  there 
seems  no  escape  from  this  conclusion.  The  widow's  right  of 
dower  is  paramount  to  the  heir;  and  she  can  have  in  lands 
descended  her  one-third  assigned  to  her  by  metes  and  bounds. 
Her  right  to  dower  in  these  lands  is  also  paramount  to  the 
devisee's  right  of  exoneration,  which  must  be  confined  to  the 
interest  of  the  heir.  But  she  is  entitled  to  the  benefit  of  this 
exoneration,  if  the  heir's  interest  is  sufficient  to  pay  off  the 
mortgage ;  and  in  this  way,  partly  in  her  own  right  and  partly 
in  the  right  of  the  devisee,  she  becomes  entitled  to  full  dower 
in  all  the  land  as  against  both  heir  and  devisee. 

§307.    Present  Value  of  the  Widow's  Vested   Right  of 
Dower. — A  widow  may,  with  the  assent  of  all  the  parties  in- 
terested, agree  to  accept  a  sum  of  money  paid  down  as  the 
present  value  of  her  vested  dower  right,  instead  of  receiving 
her  dower  in  kind,  or  interest  during  her  life  on  one-third  of 
the  value  of  her  husband's  lands.  2  Scribner,  Dower,  606,  613 ; 
Blair  v.  Thompson,  11  Grat.  441 ;  Pierce  v.  Graham,  85  Va. 
227  (7  S.  E.  189);  Scott  v.  Ashlin,  86  Va.  581  (10  S.  E. 
751) ;  Johnson  v.  Gordon,  102  Ga.  350  (30  S.  E.  507) ;  Jar- 
rell  v.  French,  43  W.  Va.  456  (27  S.  E.  263) ;  Robinson  v. 
Go  vers,  138  K  Y.  425   (34  N.  E.  209,  514).    In  ascertain- 
ing such  present   value,   the  first  question   is  the  probable 
duration  of  the  widow's  life.    This  is  ascertained  by  refer- 
ence to  Tables  of  Mortality.   2  Scribner,  Dower,  622,  et  seq.; 
Wilson  v.  Davisson,  2  Eob.  (Va.)  384;  Norfolk,  &c.  R.  Co.  v. 
Phillips,  100  Va.  362  (41  S.  E.  726);  Damm  v.  Damm,  107 
Mich.  619  (63  Am.  St.  Rep.  601)  ;  20  Am.  &  Eng.  Ency.,  Law 
(2d  ed.)  883;  Gordon  v.  Tweedy,  74  Ala.  232  (49  Am.  Rep. 
813). 

If  now  the  widow's  expectation  of  life,  thus  ascertained, 
is  twenty  years,  and  her  husband's  real  estate  of  inheritance 
is  worth  $3,000,  the  widow  is  entitled,  as  her  dower  right, 
to  $1,000  for  twenty  years.    At  six  per  cent.,  the  interest  on 


§§306,307]  DOWER    AND    CURTESY.  509 

$1,000  is  $60  a  year.  The  problem,  then,  is  to  ascertain  the 
present  (or  cash)  value  of  an  annuity  of  $60  a  year,  to  con- 
tinue twenty  years,  discounted  at  compound  interest.  Wilson 
v.  Davisson,  2  Bob.  (Va.)  381;  Gaiv  v.  Huffman,  12  Grat. 
628.   This  is  the  calculation : 

First  year— 106 :     100  :  :  60  :  56.604. 
Second  year— 106 :     100  :  :  56.604  :  53.40. 
Third  year— 106  :     100  :  :  53.40  :  50.377. 

And  so  on  for  the  20  years.  Then  the  sum  of  all  the  present 
values  gives  the  total  sum  in  cash  to  which  the  widow  is  now 
entitled.  In  Virginia  an  annuity  table  has  been  adopted  by 
statute  by  which  the  present  value  can  be  readily  ascertained. 
Code  Va.  §§  2281-3.1 

1  Tables  of  Mortality. — In  Wilson  v.  Davisson,  2  Rob.  (Va.) 
384,  the  lower  court  adopted  Wigglesworth's  Table  of  Longevity, 
to  which  no  objection  was  made  on  appeal;  and  it  is  inferred  by 
the  Reporter  that  "in  estimating  the  probable  duration  of  life  in 
Virginia  this  table,  in  the  absence  of  any  other  better  adapted  to 
our  State,  may  be  generally  used  as  a  guide,  liable,  of  course,  to 
be  departed  from  when  the  particular  circumstances  of  any  case 
may  make  it  proper  to  do  so.  But  it  may  be  remarked  that  the 
annuity  table  adopted  in  Code  Va.,  §§  2281-3  (see  §  307,  above) 
is  based,  not  on  the  Wigglesworth  table,  but  on  the  Carlisle  table, 
by  which  the  expectation  of  life  is  greater  than  by  the  Wiggles- 
worth  table.  2  Scribner,  Dower  (2d  ed.),  811,  814.  And  see 
Norfolk,  rfc,  R.  Co.  v.  Phillips,  100  Va.  362,  371,  where  it  is 
said  of  mortality  tables:  "These  tables  were  made  for  the  pur- 
pose of  life  insurance  and  annuities,  where  the  very  shortest  time 
is  fixed  as  affecting  pecuniary  risks.  They  are  regarded  as  falling 
short,  in  most  instances,  of  the  actual  duration  of  human  life." 
Citing  Mulcairns  v.  City  of  Janesville,  67  Wis.  37  (29  N.  W.  565). 

Be  Moivre's  Rule.  In  2  Minor's  Institutes  (4th  ed.),  144,  note, 
it  is  said:  "As  tables  of  the  probabilities  of  life  may  not  be  al- 
ways accessible,  the  following  rule,  stated  by  De  Moivre,  may 
easily  be  remembered:  Regarding  86  as  practically  the  extreme 
limit  of  human  life,  he  proposes  to  deduct  the  actual  age  from 
that  number,  and  to  divide  the  remainder  (which  he  styles  the 
complement   of   life)    by   two,   which   gives,   approximately,   the 


510  REAL    PROPERTY.  [Chap.  14 

§  308.  Present  Value  of  Wife's  Contingent  Right  of  Dower. 

— In  this  case  the  husband  is  living,  and  may  survive  the  wife, 
and  hence  the  dower  right  may  never  arise.  But  as  the  wife 
may  survive,  her  inchoate  right  of  dower  is  regarded  as  a  real 
and  valuable  interest,  which  the  husband  alone  cannot  con- 
vey, nor  his  creditors  take  on  execution.  Hence  the  relin- 
quishment by  the  wife  of  her  inchoate  dower  is  a  valuable 
consideration  for  a  settlement  on  her  by  her  husband,  and  is 
good  against  his  creditors.  Ficklin  v.  Rixey,  89  Va.  832  (17 
S.  E.  325);  Flynn  v.  Jackson,  93  Va.  341  (25  S.  E.  1)  ; 
Allen  v.  Patrick,  97  Va,  521  (34  S.  E.  451) ;  Rankle  v.  Run- 
kle,  98  Va.  663  (37  S.  E.  279) ;  Glascock  v.  Brandon,  35  W. 
Va.  84  (12  S.  E.  1102);  Gore  v.  Townsend,  105  ?\T.  C.  228 
(11  S.  E.  160)  ;  8  L.  E.  A.  443,  note. 

As  the  wife  may  consent  to  relinquish  her  inchoate  right 
of  dower  in  consideration  of  a  settlement  of  property  on  her, 
or  money  paid  her,  it  becomes  necessary  to  ascertain  the 
present  value  of  such  right  of  dower.  Here  we  become  in- 
volved in  the  calculus  of  probabilities.  It  is  not  correct  to 
ascertain  separately  the  probable  duration  of  the  life  of  the 
husband  and  of  the  wife,  and  then  subtract  the  husband's 
expectation  of  life  from  the  wife's;  but  from  the  probability 
of  the  life  of  the  wife  must  be  subtracted,  not  the  probability 
of  the  life  of  the  husband,  but  the  probability  of  the  joint 
life  of  both.  Then  the  proper  rule  for  computing  the  present 
value  of  the  wife's  contingent  right  of  dower  is  to  "ascertain 
the  present  value  of  an  annuity  for  her  life,  equal  to  the 
interest  in  the  third  of  the  proceeds  of  the  estate  to  which 
her  contingent  right  of  dower  attaches,  and  then  to  deduct 
from  the  present  value  of  the  annuity  for  her  life,  the  value 
of  a  similar  annuity  depending  on  the  joint  lives  of  herself 
and  her  husband;  and  the  difference  between  these  two  sums 

probable  duration  of  the  life  in  question.  Thus,  supposing  one 
to  be  of  the  age  of  fifty,  his  probable  expectation  of  life  is  ex- 
pressed by  A6^5ji_3j3__1g>  De  Moivre  on  Chances  and  An- 
nuities, 265,  283." 


§§308,309]  DOWER    AND    CURTESY.  511 

will  be  the  present  value  of  her  contingent  right  of  dower.'' 
Per  Chancellor  Walworth  in  Jackson  v.  Edwards,  7  Paige 
(X.  Y.)  386.  See  in  accord,  Gordon  v.  Tweedy,  74  Ala. 
232  (49  Am.  Eep.  813);  Straycr  v.  Long,  86  Ya.  557  (10 
S.  E.  574) ;  Barton  v.  Brent,  87  Ya.  385  (13  S.  E.  29)  ;  8  L. 
E.  A.,  443,  note.  See,  also,  3  Va.  Law  Reg.  69-80  (full  dis- 
cussion and  tables)  ;  Lancaster  v.  Lancaster,  78  Ky.  198;  Bar- 
ling v.  Hanks,  (Ky.),  42  S.  W.  1130;  2  Scribner,  Dower 
(2ded.),820-824.x 

§  309.  For  What  Proportion  of  the  Principal  of  a  Mort- 
gage Debt  is  the  Widow  Liable  as  Between  Herself  and  the 
Heirs. — This  question  supposes  that  the  mortgage  is  para- 
mount to  dower;  that  the  land  is  liable  to  pay  the  mortgage 
(the  debt  not  being  contracted  by  the  husband,  but  the  land 
bought  subject  to  the  lien ;  or,  if  contracted  by  him,  there  be- 
ing no  personalty  out  of  which  to  discharge  it) ;  that  the 
mortgage  is  foreclosed,  or  if  not,  that  the  widow  consents  to 
pay  her  part  of  the  principal,  instead  of  paying,  as  long  as 
she  lives,  one-third  of  the  interest  on  the  debt.  See  Alexander 
v.  Byrd,  85  Ya.  690  (8  S.  E.  577)  ;  Scott  v.  Ashlin,  86  Va. 
581  (10  S.  E.  751)  ;  Pleasants  v.  Flood,  89  Ya.  96  (15  S.  E. 
504)  ;  Kilbretli  v.  Roots,  33  W.  Ya.  600  (11  S.  E.  21)  ;  Blair 
v.  Mounts,  41  W.  Va.  706  (24  S.  E.  620)  ;  Shobe  v.  Brinson, 
148  Ind.  285  (47  X.  E.  625)  ;  Burnet  v.  Burnet,  46  N.  J.  Eq. 
144  (18  Atl.  374)  ;  Hodges  v.  Phinney,  106  Mich.  537  (64 
N.  W.  477). 

Upon  the  above  suppositions,  the  widow's  liability  is  thus 
clearly  stated  in  Harper  v.  Vaughn,  87  Ya.  426,  430  (12  S. 
E.   785)  :    "If  the  annual  interest  is  to  be  paid,  then  the 

1  Insane  Wife.  Extinguishment  of  Contingent  Dower. — See 
Acts  Va.  1S95-6,  p.  260,  ch.  226,  amending  C.  V.,  §  2625,  providing 
for  the  release  to  a  purchaser  of  the  contingent  right  of  dower  of 
an  insane  wife,  when  the  husband  wishes  to  sell  his  land,  and 
for  compensation  to  the  wife  for  such  right.  For  the  procedure 
under  the  statute,  see  Hess  v.  Gayle,  93  Va.  467  (25  S.  E.  533), 
deciding  that  the  wife  must  be  made  a  party,  and  have  notice. 
And  see  as  to  the  New  Jersey  statute,  In  re  Alexander,  53  N.  J. 
Eq.  96  (30  Atl.  817). 


512  REAL    PROPERTY.  [Chap.  14 

widow  is  to  pay  one-third  of  the  annual  interest,  as  she  has 
one-third  of  the  land.    If  the  principal  is  to  be  paid,  as  in 
this  case,  the  widow  is  not  required  to  pay  one-third  of  the 
principal,  because  she  does  not  hold  one-third  of  the  land  in 
fee,  but  only  for  life,  and  the  amount  which  she  is  to  pay  is 
based  on  her  life  interest;  and  the  heirs  are  to  pay  the  resi- 
due, because  they  receive  not  only  the  two-thirds  in  fee,  but 
the  remainder  of  the  one-third  at  the  death  of  the  wife;  that 
is,  they  receive  the  whole  after  the  one-third  for  the  life  of 
the  widow  has  been  taken  out.   The  amount  which  the  widow 
is  to  pay,  as  her  contribution  to  the  principal,  is  such  a  sum 
as  would  equal  the  aggregate  of  her  payments  of  annual 
interest  (if  she  were  to  pay  it  during  her  life),  reduced  to 
cash,  calculated   at   compound  interest.    The   calculation   is 
made  by  taking  from  the  tables  of  mortality  her  probable 
duration  of  life,  and,  having  thus  ascertained  approximately 
for  how  many  years  she  would  continue  to  pay  the  annual 
interest,  the  present  cash  value  at  compound  interest,  of  each 
payment    [is]    to   be   estimated,    and   the    aggregate    is    the 
amount  the  widow  must  contribute."   For  mode  of  ascertain- 
ing present  value  see  section  307,  ante.    See,  also,  Allen  v. 
Be  Groodt,  98  Mo.  159  (14  Am.  St.  Eep.  626,  and  note,  p. 
634)  Damm  v.  Damm,  109  Mich.  619  (63  Am.  St.  Eep.  601, 
and  note,  p.  604). 

§  310.  Dower  When  the  Husband's  Estate  of  Inheritance 
Terminates  in  His  Lifetime,  or  at  His  Death.— Dower  in  some 
cases  continues  beyond  the  estate  of  the  husband;  while  in 
others  it  is  defeated  by  the  ending  of  the  husband's  estate, 
in  accordance  with  the  maxim  cessante  statu  primitivo,  cessat 
atque  derivatus. 

The  general  principle  is,  that  if  the  husband's  estate  ends 
at  the  expiration  of  the  period  originally  marked  out  for  its 
duration— by  a  natural  death  according  to  its  limitation- 
then  dower  attaches  by  way  of  prolongation  of  the  husband's 
estate,  on  the  presumption  that  this  was  impliedly  included 
in  the  original  grant;  but  if  the  estate  of  the  husband  does 


§§309,310]  DOWER    AND    CURTESY.  513 

not  expire  by  limitation,  but  is  divested  or  forfeited — dies  a 
violent  death — then  there  can  be  no  presumption  of  prolonga- 
tion, and  the  widow's  dower  falls  with  her  husband's  inheri- 
tance. In  the  former  case,  the  mistletoe  may  survive  the 
death  of  the  oak,  but  not  in  the  latter. 

The  application  of  the  above  principle  is  plain  except  in 
two  cases — viz.,  (1)  base  or  qualified  fees,  beyond  whose  ter- 
mination dower  does  not  continue;  and  (3),  shifting  fees, 
which  pass  from  the  husband,  at  his  death,  to  another,  by 
way  of  executory  interest,  on  a  certain  condition  or  event, 
but  which  are  subject  to  the  widow's  dower.1 

1  Dower  in  Shifting  Fees.  Does  Widow's  Right  Enure  to 
Purchaser? — It  is  settled,  both  in  Virginia  and  West  Virginia, 
when  there  is  a  devise:  "To  B  and  his  heirs;  but  if  B  dies 
without  issue  living  at  his  death,  then  to  C  and  his  heirs";  that 
if  B  dies  without  such  issue,  the  widow  of  B  is  dowable  against 
C,  the  executory  devisee.  But  suppose  B  has  sold  and  conveyed 
his  fee  simple  to  D,  B's  wife  uniting  in  the  deed,  which  is  duly 
recorded,  and  that  B  dies  without  issue  living  at  his  death;  does 
the  dower  right  which  B's  widow  would  have  had  against  C  if 
the  land  had  not  been  sold,  or  if  she  had  not  united  in  the  deed 
to  D,  enure  to  D,  so  that  he  can  hold  one-third  of  the  land  against 
C  while  the  widow  lives?  This  question  is  answered  in  the 
affirmative  in  Nidcell  v.  Tomlinson,  27  W.  Va.  697,  in  an  elab- 
orate opinion  by  Green,  J.,  disapproving  of  the  decision  in  Corr 
v.  Porter,  33  Gratt.  278,  where  Staples,  J.,  reached  the  conclusion 
that  the  relinquishment  by  B's  widow  of  her  inchoate  dower  right, 
by  uniting  with  her  husband  in  his  deed  to  D,  could  in  no  wise, 
on  her  husband's  death  without  issue,  enure  to  the  benefit  of 
D  as  against  C. 

The  view  of  Judge  Staples  is  based  on  the  nature  of  the  in- 
choate dower  right,  and  the  effect  on  it  of  the  wife's  uniting  in 
her  husband's  deed,  as  is  set  forth  in  note  1,  p.  438,  ante,  and  on 
p.  481,  ante. 

In  the  opinion  of  Green,  J.,  it  is  said:  "This  dower  estate  of 
a  wife  in  a  defeasible  estate  of  her  husband  determinable  upon 
his  death  without  children,  is,  whether  he  died  without  children 
or  not,  but  a  continuation  of  her  husband's  estate,  a  part  and 
parcel  of  it,  and  not  an  estate  separate  and  distinct  from  the 
husband's;  and  therefore  upon  the  principles  which  we  have  laid 
down,  as  well  as  those  laid  down  by  Judge  Staples,  in  his  views 

33 


514  REAL    PROPERTY.  [Chap.  14 

For  further  comment  on  these  cases,  see  §§  311,  312,  and 
notes.  For  elaborate  discussion  of  the  whole  subject,  see  1 
Scribner,  Dower,  286-320;  1  Bishop,  Married  Women, 
§§  312,  313;  1  Washburn,  Eeal  Prop.  (5th  ed.),  271-276. 
For  "Base  or  Qualified  Fees,"  see  §  37,  ante;  for  "Shifting 
Fees,"  see  §§  210-212,  ante. 

§  311.  Cases  in  Which  the  Widow  Has  Dower,  Although 
the  Husband's  Estate  of  Inheritance  Has  Come  to  an  End. — 

These  are  three  in  number : 

1.  When  the  husband  is  seised  of  an  estate  in  fee  simple 
which  escheats  at  his  death  for  want  of  heirs.  In  this  case 
the  widow  is  dowable  at  common  law.  The  estate  expires  by 
its  regular  and  natural  limitation,  and  the  estate  of  the  widow 
is  regarded  as  the  mere  prolongation  of  the  estate  of  the 
husband.  1  Scribner,  Dower  (2d  ed.),  286.  But  now,  in 
Virginia,  the  statute  of  descents,  in  default  of  all  other  heirs, 
allows  husband  or  wife  to  be  heir  to  each  other  (§  71,  ante). 
So,  in  the  above  case,  the  widow  in  Virginia  becomes  the 
husband's  heir,  and  takes,  not  dower,  but  the  fee  simple  by 
descent. 

2.  When  the  husband  is  seised  of  an  estate-tail,  which 
ends  at  his  death  for  want  of  heirs  of  his  body.    At  common 

above  quoted,  there  is  no  reason  why  this  dower  estate,  or  this 
right  of  dower,  should  not  be  vested  in  the  grantee  by  the  wife 
uniting  with  her  husband  in  conveying  such  an  estate  to  a  pur- 
chaser, It  is  still  true  that  by  uniting  with  her  husband  she 
simply  relinquishes  a  contingent  right  in  the  nature  of  an  in- 
cumbrance upon  the  land  conveyed."  And  he  adds  that  the  West 
Virginia  statute  [same  in  Virginia]  should  be  so  construed  as  to 
enable  the  husband  to  sell  and  convey  his  defeasible  estate  to 
the  greatest  advantage,  if  in  so  doing  the  dower  estate  or  inter- 
est of  the  wife  in  the  land  be  not  separated  from  the  husband's 
estate  in  the  land.  And  this  is  done  by  construing  the  deed  of 
husband  and  wife  conveying  a  defeasible  estate  to  a  purchaser 
as  vesting  in  him  whatever  estate  or  right,  either  vested  or  con- 
tingent, either  of  them  had  in  such  land. 


§§310,311]  DOWER    AND    CURTESY.  515 

law  the  widow  is  dowable  upon  the  same  principle  as  under 
(1)  above.  Pained  Case,  8  Coke,  34  b;  1  Scribner,  Dower, 
287.  See  1  Washburn,  Keal  Prop.,  271,  where  it  is  said  of 
this  case:  "It  having  been  an  estate  of  inheritance  in  the 
tenant  [in  tail],  his  widow,  if  he  dies  [without  issue],  will 
be  entitled  to  dower,  it  being  by  implication  of  law  annexed 
to  such  an  estate  as  an  incidental  part  of  it — a  portion  of  the 
quantity  of  enjoyment  designated  by  the  terms  of  the  limi- 
tation itself."  It  may  be  added,  that  the  widow  was  dowable 
of  a  "fee  conditional  at  common  law,"  though  it  ended  on  the 
death  of  her  husband  without  issue.  See  1  Scribner,  Dower, 
305-7;  §  38,  ante.  This  estate  still  exists  in  South  Carolina. 
Selman  v.  Robertson,  46  S.  C.  262  (24  S.  E.  187) ;  Bethea 
v.  Bethea,  48  S.  C.  440;  26  S.  E.  716 ).1 

3.  When  the  husband  is  seised  of  an  estate  in  fee  simple 
which  is  so  limited,  by  way  of  executory  use  or  executory 
devise,  as  to  shift,  at  his  death,  to  another.  In  this  case  the 
widow,  by  the  great  weight  of  authority,  is  entitled  to  dower. 
Thus,  if  there  is  a  devise  by  A  "to  B  (the  husband)  and  his 
heirs;  but  if  B  shall  die  without  issue  living  at  his  death, 

1  Fees  Conditional  in  South  Carolina. — In  the  cases  above 
cited,  there  was  no  question  of  dower  or  curtesy,  but  the  court 
held  that  a  devise  "to  A  and  the  heirs  of  his  body,"  or  "to  A 
and  the  lawful  issue  of  his  body,"  gives  to  A  a  fee  conditional, 
which,  after  birth  of  issue,  A  can  alienate  by  deed  in  his  life 
time.  Also  that,  in  such  cases,  a  limitation,  "if  A  die  without 
issue  living  at  his  death,  then  to  B  and  his  heirs,"  is  good  as 
an  executory  devise. 

But  the  question  as  to  curtesy  in  a  fee  conditional  was  raised 
in  Wright  v.  Herron,  5  Rich.  Eq.  441  (S.  C.  6  Rich.  Eq.  406), 
and  the  members  of  the  Court  of  Errors  were  equally  divided  as 
to  whether  in  South  Carolina  there  was  curtesy  at  all  in  a  con- 
ditional fee,  and  "remanded  the  case  to  the  Chancellors  for  their 
own  disposition,"  who  gave  the  husband  curtesy.  No  later  case 
in  South  Carolina  has  been  found;  but  to  the  writer  there  occurs 
no  reason  why  the  surviving  husband  should  not  have  curtesy 
in  a  conditional  fee  of  the  wife,  both  when  she  leaves  issue,  and 
when  it  terminates  at  her  death  for  want  of  issue,  the  issue 
born  alive  to  the  wife  dying  in  her  life  time. 


516  REAL   PROPERTY.  [Chap.  14 

then  to  C  and  his  heirs" :  here  on  the  death  of  B  without  such 
issue  the  fee  simple  shifts  from  B  to  C,  but  subject  never- 
theless to  a  dower  right  in  favor  of  the  widow  of  B.  The 
same  question,  mutatis  mutandis,  arises  as  to  the  surviving 
husband's  curtesy  (supposing  there  was  issue  born  alive),  and 
lias  been  decided  in  favor  of  the  husband's  right.  The  doc- 
trine has,  however,  been  questioned  by  text-writers  of  emi- 
nence, as  contrary  to  principle.  See,  in  favor  of  the  right  to 
dower,  or  curtesy,  in  Shifting  Fees,  the  following  cases: 
Buchworth  v.  ThirJcell,  3  Bos.  &  Pul.  652,  note  (leading  case 
decided  by  Lord  Mansfield)  ;  Moody  v.  King,  2  Bing.  447 
(9  E.  C.  L.  B.  475);  Taliaferro  v.  Burwell,  4  Call  (Ya.) 
321;  Jones  v.  Hughes,  27  Grat.  560;  Medley  v.  Medley,  lb. 
568 ;  Corr  v.  Porter,  33  Grat.  278 ;  Snyder  v.  Grandstaff,  96 
Va.;  473  (31  S.  E.  647)  ;  Tomlinson  v.  NicJcell,  24  W.  Va. 
148;  NicJcell  v.  Tomlinson,  27  Id.  697;  Evans  v.  Evans,  9 
Pa.  St.  190;  Thornton  v.  Krepps,  37  Pa.  St.  391  (distin- 
guished in  McMasters  v.  Negley,  152  Pa.  St.  303  (25  Atl. 
640) ;  Hatfield  v.  Sneden,  54  N.  Y.  80;  Northcutt  v.  Whipp 
12  B.  Monroe  65;  Webb  v.  Trustees,  11  Ky.  Law  26  (13  S. 
W.  362)  ;  Pollard  v.  Slaughter,  92  N.  C.  72  (53  Am.  Bep. 
402).  Contra:  Milledge  v.  Lamar,  4  Dess.  (S.  C.)  617 
Kennedy  v.  Kennedy,  5  Dutcher  (1ST.  J.)  185;  Edwards  x. 
Bibb,  54  Ala.  475.1 

1  Dower  and  Curtesy  in  Shifting  Fees. — Whether,  on  prin- 
ciple dower  or  curtesy  should  be  allowed  in  a  fee  simple  estate, 
defeasible  on  an  event  which,  ipso  facto,  transfers  the  estate  to 
another,  is  one  of  the  difficult  problems  of  the  law,  and  has  pro- 
voked much  discussion.  At  present  the  right  to  dower  or  curtesy 
in  this  case  is  settled  by  an  almost  unbroken  line  of  decisions, 
but  it  may  not  be  amiss  to  consider  briefly  upon  what  grounds 
the  right  has  been  upheld. 

Referring  to  the  test  laid  down  in  §  310,  ante,  can  it  be  said, 
in  case  of  an  executory  devise  of  a  fee  on  a  fee — the  second  fee 
to  supplant  the  first  on  some  event  or  condition — that  the  first 
fee  (in  which  dower  or  curtesy  is  claimed) — "ends  at  the  expira- 
tion of  the  period  originally  marked  out  for  its  duration,  by  a 
natural  death,   according   to   its  limitations"?     Professor   Minor 


§§  311, 312]  DOWER    AND    CURTESY.  517 

§  312.  Cases  in  Which  There  is  no  Dower  on  the  Ending  of 
the  Husband's  Inheritance. — These  are  three  in  number : 

1.  When  the  husband  is  seised  of  land,  of  which  he  is 
evicted  during  coverture  by  the  title  paramount  of  a  third  per- 
son. In  this  case,  as  the  husband  was  never  rightfully  seised, 
the  recovery  of  the  land  by  the  true  owner,  which  destroys  ab 
initio  the  husband's  apparent  title,  must  preclude  dower  also. 

seems  to  be  of  this  opinion,  declaring  that,  in  the  case  under 
consideration,  "the  husband  is  entitled  to  curtesy,  notwithstand- 
ing the  determination  of  his  wife's  estate,  because  it  is  terminated 
by  the  regular  efflux  of  one  of  the  periods  marked  for  its  dura- 
tion, and  in  a  manner  which  does  not  affect  her  previous  seisin." 
And  it  seems  that  this  was  Lord  Mansfield's  ratio  decidendi  in 
Buckioorth  v.  Thirkell,  supra.  On  the  other  hand,  this  view  of 
"regular  efflux"  is  derided  by  Park  (on  Dower,  178),  who  says: 
"It  is  certainly  inconsistent  with  all  ideas  entertained  in  mod- 
ern practice  to  consider  an  estate  originally  limited  in  fee,  and 
abridged  by  a  subsequent  limitation  over  on  the  happening  of  a 
particular  event,  in  any  such  light  as  that  implied  by  the  ob- 
servation that  it  was  spent  upon  the  happening  of  that  event." 
If  we  accept  Park's  view  as  the  better  (as  to  the  writer  seems 
necessary),  then  the  case  under  discussion  cannot  come  under 
the  general  principle  above  laid  down,  and  must  be  regarded  as 
exceptional,  and  resting  on  its  own  peculiar  ground.  The  usual 
explanation,  by  judges  and  text-writers,  is  thus  stated  by  Mar- 
shall, J.,  in  Northcut  v.  Whipp,  12  B.  Monroe  (Ky.)  65,  74,  de- 
cided in  1851:  "Here  W.  L.  Northcut  [the  husband]  had  in  the 
land  devised  to  him  an  estate  in  fee,  defeasible,  indeed,  on  the 
contingency  of  his  death  without  leaving  lawful  issue,  but  which 
was  an  estate  of  inheritance  in  him  up  to  the  last  moment  of 
his  life,  and  which,  unless  aliened  by  him,  not  only  might,  but 
must,  have  descended  on  his  death  to  any  issue  of  the  marriage 
then  living.  .  .  .  Here,  as  in  the  case  of  an  estate-tail,  the 
husband  may  rightfully  enjoy  the  estate  during  his  life,  and  at 
his  death  it  is  continued  in  his  heirs,  if  there  be  any  of  the  des- 
ignated character.  And  as  the  possibility  that  the  wife  might 
have  had  issue  that  might  have  inherited  is  sufficient,  though 
there  be  no  such  issue  in  fact,  to  sustain  the  right  of  dower,  it 
would  seem  clear,  upon  analogy,  that,  under  the  rule  stated  by 
Littleton,  the  possibility  of  such  issue  should  sustain  the  right 
in  this  case  of  a  defeasible  fee  in  the  husband."     This  reasoning 


518  REAL    PROPERTY.  [Chap.  14 

1  Scribner,  Dower,  290;  1  Washburn,  Eeal  Prop.  267;  2 
Min.  Ins.  (4th  ed.)  132.  Thus  in  Glos  v.  Gerritij,  190  111. 
545  (60  N.  E.  833),  it  was  held  that  on  the  cancellation  of  a 
tax  deed,  as  a  cloud  on  the  plaintiff's  title,  it  was  proper  to 
decree  that  the  defendant's  wife  was  without  interest  in  the 
premises,  since  the  inchoate  dower  right  of  the  wife  ended 
with  the  termination  of  the  defendant's  seisin. 

2.  When  the  husband  is  seised  of  land  of  which  he  is 
evicted  during  the  coverture  by  the  entry  of  the  grantor  to 
enforce  a  forfeiture  by  reason  of  breach  of  a  condition  sub- 
sequent. In  this  case,  as  the  seisin  of  the  husband  is  annulled 
ab  initio,  the  effect  must  be  to  preclude  dower.  See  p.  382, 
ante,  note;  1  Scribner  on  Dower,  290;  Beardslee  v.  Beards- 
lee,  5  Barb.  (N.  Y.)  325;  Black  v.  Elhhorn,  &c.  Co.,  163  U. 
S.  445,  452. 

3.  When  the  husband  is  seised  of  a  base,  qualified,  or  de- 
terminable fee,  which  ends  on  the  happening  of  the  contin- 
gency. For  examples  of  such  fees,  see  §  37,  ante.  In  this 
case,  it  seems  that  there  is  neither  dower  nor  curtesy  after 
the  happening  of  the  contingent  event,  which  ends  the  estate ; 
though  the  fact  that  the  estate  is  base  or  determinable  does 
not  prevent  it  from  being  subject  to  dower  or  curtesy  while  it 
continues  to  exist.  1  Scribner,  Dower,  290,  297;  1  Wash- 
burn, Beal  Prop.,  268 ;  Seymour's  Case,  10  Coke  96. 

The  above  doctrine,  as  stated  by  Washburn,  that  "where 
the  husband  is  seised  of  a  base  or  determinable  fee,  and  the 
same  is  determined  by  the  happening  of  the  event  upon 
which  it  is  limited,  the  right  of  dower  on  the  part  of  the 

is  objected  to  by  Park  (on  Dower,  181)   on  grounds  which  seem 
cogent,  but  the  discussion  is  too  long  to  be  reproduced  here. 

Another  ground  for  the  doctrine  under  consideration  is  thus 
stated  by  Preston  (3  Prest.  Abst.  373),  and  is  adopted  as  the 
only  satisfactory  ground  by  Gibson,  C.  J.,  in  Evans  v.  Evans,  9  Pa. 
St.  190:  "The  cases  of  dower  of  estates  determined  by  executory 
devise  and  springing  use  owe  their  existence  to  the  circumstance 
that  these  limitations  are  not  governed  by  common  law  prin- 
ciples;   and   when  the  limitation  over  was  allowed  to  be  valid 


§312]  DOWER    AND    CURTESY.  519 

wife  or  widow  thereupon  ceases,"  rests  upon  slight  authority, 
though  it  has  been  received  without  question  by  the  text- 
writers  generally.  Professor  Minor,  however,  declares  the 
doctrine  unsound  on  principle,  and  that  Seymour's  Case, 
ante,  on  which  it  is  supposed  to  rest,  does  not  really  sustain 
it.    2  Min.  Ins.  (4th  ed.)  130.    Undoubtedly,  the  ending  of  a 

against  the  former  donee,  it  was  on  the  terms  that  the  limitation 
over  should  not  impeach  the  title  of  dower  of  the  wife  of  that 
donee."  Of  this  statement  Park  remarks  dryly  (on  Dower,  183) : 
"The  writer  has  not  hitherto  been  so  fortunate  as  to  meet  with 
the  passages  in  the  books  from  which  this  proposition  is  col- 
lected." 

On  the  whole,  the  doctrine  under  consideration  seems  to  have 
been  introduced  either  through  misapprehension,  or  by  forced 
analogy,  or  simply  as  a  stretch  of  judicial  favor.  It  is  approved, 
however,  by  Washburn,  Bishop,  and  Scribner.  (See  §  310,  ante, 
for  citations.)  The  latter  thus  concludes  an  extended  discus- 
sion (1  Scribner,  Dower,  319,  320) :  "There  seems  to  be  a  marked 
distinction  between  a  case  where,  by  the  terms  of  the  limitation, 
the  husband  takes  a  fee  simple  estate,  which,  if  he  have  issue  liv- 
ing at  his  death,  will  descend  to  such  issue,  and  which  is  lim- 
ited over  only  in  the  event  of  his  death  without  issue,  and  other 
cases  of  conditional  limitation.  Such  a  case  is  closely  assim- 
ilated in  principle  to  the  natural  determination  of  the  estate  for 
want  of  heirs  generally,  and  there  seems  no  good  reason  why 
the  husband's  estate  should  not  be  so  prolonged  as  to  give  the 
right  of  dower  in  the  one  case  as  well  as  the  other,  particularly 
as  it  is  allowed  to  estates-tail  under  similar  circumstances,  and 
also  to  conditional  fees  at  common  law."  And  he  adds:  "In  all 
the  reported  cases  in  which  dower  or  curtesy  has  been  allowed 
upon  estates  of  this  character,  the  estate  was  such  that  the  issue 
of  the  wife,  had  there  been  any,  would  have  been  entitled  to  take 
by  descent.  In  the  cases  in  which  it  was  denied,  the  issue  could 
not  have  taken  by  descent."  Citing  Sumner  v.  Partridge  and 
Barker  v.  Barker,  for  which  see,  ante,  §  286,  note  2. 

It  must  be  remembered  that  it  is  only  when  the  estate  in  fee 
shifts  from  the  consort  at  death  that  there  is  dower  or  curtesy. 
There  is  neither  if  it  is  defeasible  on  an  event  that  may  happen 
during  the  coverture.  1  Scribner,  Dower,  319,  320.  See  1 
Bishop,  Mar.  Worn.,  §  313,  where  it  is  said:  "If  the  estate  of  the 
husband  determines  during  his  life,  there  is  no  pretence  that 
under  any  attending  circumstances  the  widow  can  have  dower." 


520  REAL    PROPERTY.  [Chap.  14 

base  or  determinable  fee  (as  is  pointed  out  in  §  37,  ante), 
is  by  way  of  limitation,  and  not  condition;  it  expires  at  the 
end  of  the  period  originally  marked  out  for  its  duration; 
and  it  would  seem,  under  the  general  rule  laid  down  in  sec- 
tion 310,  ante,  that  there  should  be  dower  or  curtesy  by  way 
of  prolongation  of  the  husband's  estate.  It  is  possible  that 
the  anomaly  (made  more  marked  by  the  fact  that  dower  or 
curtesy  does  attach  to  what  would  be  a  base  fee,  if,  instead  of 
reverting  to  the  grantor  or  his  heirs,  it  shifted  at  the  consort's 
death  to  another  by  way  of  executory  limitation)  is  due  to 
the  fact  that  the  event  on  which  a  base  fee  terminates  may 
(and  usually  does)  happen  during  the  coverture;  in  which 
case,  as  we  have  seen,  dower  or  curtesy  is  denied,  even  in  a 
fee  which  shifts  by  way  of  conditional  limitation;  and  a 
doctrine,  proper  when  applied  to  these  cases,  was  laid  down 
as  applicable  to  base  fees  generally.    See  page  499,  ante  note. 

§  313.  Widow's  Quarantine — Definition  and  Extent, — By 
the  common  law  right  of  dower,  the  widow,  before  dower 
has  been  assigned  her,  has  no  right  of  entry  on  the 
lands  of  her  deceased  husband.  In  order  to  provide  for 
her  a  temporary  home,  it  was  declared  by  Magna  Cliarta 
(A.  D.  1215)  that  the  widow  "may  remain  in  her  husband's 
capital  mansion-house  forty  days  after  his  death,  .within 
which  time  her  dower  shall  be  assigned."  This  privilege  of 
the  widow,  from  the  number  of  the  days,  was  called  her 
quarantine.  Co.  Litt,  34  b;  2  Bl.  Com.  135;  2  Min.  Ins.  (4th 
ed.)  158;  10  Am.  &  Eng.  Ency.  Law  148.  And  by  the  sub- 
sequent charter  of  Henry  III.,  the  support  of  the  widow, 
during  the  forty  days,  from  her  husband's  estate,  was  in- 
cluded in  her  right  of  quarantine.  2  Scribner,  Dower,  55; 
Simmons  v.  Lyles,  32  Grat.  752. 

In  the  United  States,  the  widow's  quarantine  has  been 
enlarged  by  statute,  both  as  to  the  time  of  its  continuance 
and  as  to  the  property  embraced  thereunder,  the  statutes 
varying  in  the  several  States,  and  from  time  to  time  in  the 
same  State.    Thus  the  Virginia  statute,  prior  to  July  1,  1850 


§§312,313]  DOWER    AND    CURTESY.  521 

(1  Eev.  Code,  eh.  107,  §  2),  was  as  follows:  "And  till  such 
dower  shall  be  assigned,  it  shall  be  lawful  for  her  [the 
widow]  to  remain  and  continue  in  the  mansion-house,  and 
the  messuage  or  plantation  thereto  belonging,  without  being 
chargeable  to  pay  the  heir  any  rent  for  the  same."  This  car- 
ried quarantine  to  the  farthest  limit,  both  as  to  time  and  as 
to  subject-matter.  But  by  the  Virginia  Code  of  1849,  taking 
effect  July  1,  1850,  quarantine  was  restricted  as  to  subject- 
matter,  the  statute,  as  reproduced  in  the  Virginia  Code  of 
1887  (§  2274),  reading  as  follows:  "Until  her  dower  is 
assigned,  the  widow  may  hold,  occupy,  and  enjoy  the  mansion- 
house  and  curtilage  without  charge1 ;  and,  in  the  meantime, 
she  shall  be  entitled  to  demand  of  the  heirs  or  devisees  <me- 
third  part  of  the  issues  and  profits  of  the  other  real  estate 
which  descended,  or  was  devised  to  them;  of  which  she  is 
dowable."  This  has  been  further  changed  by  Virginia  Acts, 
1902-'3-'4,  c.  425    (taking  effect  December   12,   1903),  and 

1  Quarantine  in  the  United  States. — It  will  be  seen  that  since 
July  1,  1850,  the  right  of  possession  by  the  widow  of  her  hus- 
band's realty,  by  virtue  of  quarantine,  is  restricted  in  Virginia 
to  the  "mansion-house  and  curtilage,"  instead  of  the  "mansion 
house  and  the  messuage  or  plantation  thereto  belonging,"  as  un- 
der the  former  law.  Many  of  the  statutes  of  other  States  still 
extend  quarantine  to  the  plantation  "connected  with"  or  "be- 
longing to"  the  mansion-house.  Others  confine  it  to  the  man- 
sion-house and  curtilage,  as  under  the  present  Virginia  law.  See 
10  Am.  &  Eng.  Ency.  Law,  149;  2  Scribner,  Dower,  56,  57. 

As  to  what  is  embraced  under  plantation  "belonging  to,"  or 
"connected  with  "  the  mansion-house,  see  McKaig  v.  McKaig,  50 
N.  J.  Eq.  325  (25  Atl.  181) ;  McAllister  v.  McAllister,  37  Ala.  484; 
Gentry  v.  Gentry,  122  Mo.  202  (26  S.  W.  1090).  As  to  the  mean- 
ing of  the  word  "Curtilage,"  see  8  Am.  &  Eng.  Ency.  Law  (2d 
ed.)  527;  2  Minor's  Ins.  5.  In  Dungan  v.  Bryant,  14  Ky.  Law, 
675  (20  S.  W.  1100),  the  Kentucky  statute  is  quoted  as  providing 
that  the  widow  shall  hold  by  way  of  quarantine,  in  addition  to 
the  mansion-house,  "the  yard,  garden,  the  stable  and  the  lot  on 
which  it  stands,  and  an  orchard,  if  there  is  one,  adjoining  any 
of  the  premises  aforesaid" — which  seems  to  be  an  attempt  to 
define  "curtilage."  As  to  "messuage,"  see  Grimes  v.  Wilson 
(Ind.),  4  Blackf.  331;  Orrick  v.  Roobins,  34  Mo.  226. 


522  REAL    PROPERTY.  [Chap.  14 

the  statute  as  to  quarantine  now  reads  as  follows:  "Until 
her  dower  is  assigned,  the  widow  may  hold,  occupy,  and  enjoy 
the  mansion-house  and  curtilage  without  charge  for  rent, 
repairs,  taxes,  or  insurance;  and  in  the  meantime  she  shall 
be  entitled  to  demand  of  the  heirs,  devisees,  or  alienees,  or 
any  of  them,  one-third  part  of  the  issues  or  profits  of  the 
other  real  estate  which  descended,  or  was  devised,  or  passed, 
to  them,  of  which  she  is  dowable,  after  deducting  the  cost  of 
necessary  repairs,  taxes,  and  insurance." 

The  policy  of  the  Virginia  statute  is  to  provide  a  reason- 
able support  for  the  widow  during  quarantine,  but  to  shorten 
its  continuance  by  making  it  to  the  interest  of  the  heir  to 
assign  doweT  promptly.  For  until  dower  is  assigned,  the 
widow  has  all  of  the  mansion-house  and  curtilage,  and  one- 
third  of  the  profits  of  the  other  lands,  which  is  more  than  she 
would  receive  by  way  of  dower.  The  statute  thus  "puts  a 
coal  of  fire  on  the  terrapin's  back." 

§  314.    Widow's    Quarantine — Nature    and    Incidents. — 

AVb en  the  widow's  quarantine  continues  until  her  dower  is 
assigned  her,  as  it  does  in  many  of  the  States,  it  might  seem 
to  be  an  estate  of  freehold,  as  being  "of  indefinite  duration, 
with  a  possibility  of  lasting  for  her  life."  See  §  9  ante. 
And  this  view  was  once  taken  in  New  Jersey.  Acherman  v. 
Shelp,  8  1ST.  J.  Law,  125;  Craige  v.  Morris,  25  N.  J.  Eq. 
467.  But  the  law  is  now  settled  that  the  widow's  quarantine 
interest  does  not  rise  to  the  dignity  of  a  freehold  estate,  but 
is  in  the  nature  of  an  estate  at  will.  This  is  held  in  Simmons 
v.  Lyles,  32  Grat.  752,  where  it  is  said  by  Staples,  J. :  "Whilst 
under  the  statute  she  has  the  privilege  of  occupying  the 
mansion-house,  it  is  at  the  pleasure  of  the  owner  of  the  fee. 
He  may  enter  at  any  time,  assign  dower,  and  put  an  end  to 
her  possession  and  interest.  A  possession  thus  held  at  the 
will  of  another  is  of  too  precarious  a  nature  to  be  termed  a 
freehold  estate  in  land.  *  *  *  The  effect  of  the  statute 
is  merely  to  extend  the  quarantine.  The  object,  manifestly, 
was  to  coerce  the  heir  to  assign  dower;  and,  until  this  was 


§§313,314]  DOWER    AND    CURTESY.  523 

done,  to  protect  her  in  the  enjoyment  of  the  homestead  and 
the  rents  and  profits  accruing  therefrom."  And  see  Gains  v. 
Crenshaw,  6  Ala.  873;  Inge  v.  Murphy,  14  Ala.  289;  Roach 
v.  Davidson,  3  Brev.  (S.  C.)  80;  Spinning  v.  Spinning,  41 
N.  J.  Eq.  427  (affirmed  43  N.  J.  Eq.  215)  ;  Wallis  v.  Smith, 
10  Miss.  220;  Aiken  v.  Aiken,  12  Or.  203  (6  Pac.  682); 
Grubos  v.  Leyendecker,  153  Ind.  348  (53  K  E.  940). 

The  widow's  quarantine  being  merely  a  privilege  of  posses- 
sion, analogous  to  an  estate  at  will,  the  question  has  arisen 
whether,  like  an  estate  at  will,  it  is  non-assignahle  by  the 
widow.  On  this  point  the  authorities  are  in  conflict.  See 
2  Scribner,  Dower,  64;  10  Am.  &  Eng.  Ency.  Law,  148.  The 
general  doctrine  is  that  quarantine  is  a  personal  privilege 
of  the  widow,  and  incapable  of  alienation  by  her,  as  it  is 
incapable  of  involuntary  alienation  by  levy  and  sale  for  her 
debts.  Wallis  v.  Smith,  10  Miss.  220;  Cook  v.  Webb,  18 
Ala.  810;  Norton  v.  Norton,  94  Ala.  481  (10  South  446)  ; 
Grubbs  v.  Leyendecker,  153  Ind.  348  (53  N".  E.  940).  But 
the  contrary  view  prevails  in  Missouri  and  New  Jersey. 
Stokes  v.  McAllister,  2  Mo.  163;  Carey  v.  West,  139  Mo. 
146  (40  S.  W.  661)  ;  Craige  v.  Morris,  25  N.  J.  Eq.  467. 
And  even  in  those  States  where  the  doctrine  of  non-assign- 
ability  prevails,  there  is  a  disposition  to  relax  its  severity  in 
favor  of  the  widow,  so  as  to  allow  her  to  receive  the  rents 
from  a  sub-lessee,  or  from  one  to  whom  she  gives  a  permis- 
sive possession.  Doe  v.  Bernard,  7  Sm.  &  M.  (Miss.)  319; 
Inge  v.  Murphy,  14  Ala.  289;  Davenport  v.  Deveneaux,  45 
Ark.  341 ;  Hyser  v.  Stoker,  3  B.  Mon.  117.  For  discussion 
of  the  subject,  see  2  Scribner,  Dower,  64;  Craige  v.  Morris, 
25  K  J.  Eq.  465,  468.  In  Virginia,  in  McReijnolds  v. 
Counts,  9  Grat.  242,  it  is  said  of  the  widow's  quarantine: 
"She  might  occupy  the  land  herself,  or  allow  another  to  do 
it  for  her.  It  was  therefore  error  to  direct  an  account  of 
rents  and  profits  whilst  it  was  so  held,  either  by  her  or  by 
Isaac  McReynolds,  with  her  permission."  It  will  be  seen 
that  this  falls  short  of  deciding  that  the  widow  had  full  power 
of  alienation. 


524  REAL    PROPERTY.  [Chap.  14 

It  is  well  settled  that  the  possession  of  the  widow  under 
her  right  of  quarantine  is  in  privity  with,  and  not  adverse 
to,  the  heirs  or  devisees  of  the  husband.  Porter  v.  Williams, 
3  A.  K.  Marsh  (Ky.)  1113;  Carey  v.  West,  139  Mo.  146 
(40  S.  W.  660) ;  Hannon  v.  Hounilian,  85  Va.  429  (12  S.  E. 
157) ;  Hulvey  v.  Hulvey,  92  Va.  182  (23  S.  E.  233).  See, 
as  to  the  general  principle,  page  156,  note  1,  ante.  But  see 
Carpenter  v.  Garrett,  75  Va.  129,  135,  where  the  widow's 
possession  under  her  quarantine  is  spoken  of  as  "in  a  certain 
sense  adverse,"  so  as  to  prevent  the  actual  seiesin  of  the  heir- 
ess, necessary  to  give  her  husband  curtesy. 

It  remains  to  inquire  how  the  widow's  quarantine  may  ter- 
minate. Of  course,  when  its  duration  is  fixed  by  statute,  it 
expires  by  efflux  of  time.  And  when  it  is  to  continue  until 
dower  is  assigned  her,  it  terminates  upon  such  assignment. 
The  right  may  also,  doubtless,  be  waived  or  abandoned  by  the 
widow;  and  an  absolute  assignment,  where  she  has  no  power 
to  assign,  has  been  held  to  work  a  forfeiture  of  her  quarantine 
in  favor  of  the  heir.  Wallace  v.  Hall,  19  Ala.  367.  Whether 
a  widow's  marriage  works  a  forfeiture  of  quarantine  under 
the  American  statutes,  as  it  did  in  England,  is  doubtful. 
Professor  Minor  (2  Min.  Ins.  158)  is  of  opinion  that  the 
quarantine  would  be  forfeited  in  Virginia  because  the  word 
"widow,"  used  in  the  statute,  "imports  a  continuance  of  the 
state  of  widowhood,  so  that  if  she  marries  she  forfeits  the 
special  provision,  and  can  only  fall  back  on  her  dower."  And 
see  1  Lorn.  Dig.  (91).  Sed  qucere.  In  Alabama  and  Ken- 
tucky, it  has  been  held  that  the  widow's  re-marriage  does  not 
affect  her  privilege  of  quarantine.  Slielton  v.  Carrol,  1  Ala. 
148;  White  v.  Clarice,  7  T.  B.  Mon.  (Ky.)  641.  And  see 
2  Scribner,  Dower,  65,  where  McReynolds  v.  Counts,  9 
Grat.  242,  is  cited  for  the  proposition  that  in  Virginia  a 
widow's  marriage  does  not  cause  forfeiture  of  her  quarantine, 
but  the  case  is  not  in  point,  unless  by  rather  remote  inference. 


§§  314, 315]  DOWER    AND    CURTESY.  525 

§  315.    Widow's  Quarantine — Privileges  and  Obligations. 

— Under  this  head  must  be  considered  (1)  Eents  and  Profits 
(crops,  etc.) ;  (2)  Taxes;  and  (3)  Interest  on  Encumbrances. 

1.  Bents  and  Profits. — As  we  have  seen,  the  Virginia 
Statute  now  declares  (p.  504,  ante),  that  "until  her  dower  is 
assigned,  the  widow  may  hold,  occupy  and  enjoy  the  mansion- 
house  and  curtilage  without  charge  for  rent,  repairs,  taxes, 
or  insurance."  This  is  the  universal  rule  as  to  rent,  both 
when  the  quarantine  is  confined  to  the  mansion-house  and 
curtilage,  and  when  it  extends  also  to  the  plantation  "con- 
nected with"  or  "belonging  to"  the  "mansion-house."  And 
holding  the  premises  "without  charge  for  rent,"  the  widow 
is  entitled  to  all  the  profits  derivable  therefrom  by  cultivation 
(crops,  etc.) ;  and  if  another  occupies  for  her,  or  as  her 
lessee,  paying  rent,  she  is  entitled  to  such  rent.  If,  however, 
at  the  husband's  death,  the  premises  are  in  possession  of 
his  lessee,  the  widow's  quarantine  will  not  attach  until  the 
lease  expires.  McReynolds  v.  Counts,  9  Grat.  (Va.)  242; 
Merchant  v.  Comback,  41  N.  J.  Eq.  349  (7  Atl.  633); 
Becker  v.  Carey  (K.  J.  Eq.),  36  Atl.  770;  Gentry  v.  Gentry, 
122  Mo.  202  (2Q  S.  W.  1090) ;  Smith  v.  Stephens,  164  Mo. 
415  (64  S.  W.  260)  ;  Callahan  v.  Nelson,  128  Ala.  671  (29 
South  555) ;  Stull  v.  Graham,  60  Ark.  461  (46  S.  W.  46)  ; 
Davis  v.  Lowden,  56  K  J.  Eq.  126  (38  Atl.  648).  But  in 
Salinger  v.  Black,  68  Ark.  449  (60  S.  W.  229),  it  was  held 
that  where  the  widow  was  also  administratrix,  and  charged 
herself,  in  her  annual  settlements,  with  the  rents  of  the  land 
to  which  she  was  entitled  by  right  of  quarantine,  she  thereby 
waived  her  right  to  such  rents,  and  was  not  entitled  to  a 
credit  therefor. 

We  have  seen  that  the  widow  is  entitled  to  cultivate  the 
land,  and  take  the  crops,  during  her  quarantine.  But  how 
as  to  the  crops  sown  by  the  husband,  and  reaped  or  gathered 
after  his  death?  On  this  point,  there  is  but  little  authority. 
The  question  might  have  arisen  in  Grayson  v.  Moncure,  1 
Leigh  (Va.)  449,  but  the  case  was  disposed  of  on  other 
grounds.    In  Blair  v.  Murphree,  81  Ala.  454  (2  South.  18), 


526  REAL    PROPERTY.  [Chap.  14 

the  right  to  crops  sown  by  the  husband,  which  the  administra- 
tor might  have  exercised,  was  under  a  statute  declaring  that 
"the  executor  or  administrator  may  complete  and  gather  a 
crop  commenced  by  the  decedent."  On  principle,  it  would 
seem  that  the  widow's  quarantine  should  entitle  her  to  such 
crops,  just  as  "where  lands  which  have  been  sown  with  corn 
and  grain  are  assigned  to  the  widow  for  dower  by  the  heir, 
she  will  be  entitled  to  the  crops."  2  Scribner,  Dower,  89,  778. 
And,  see  Engle  v.  Engle,  3  W.  Va.  246. 

2.  Taxes. — It  is  well  settled  that  when  dower  is  assigned 
to  a  widow,  she  is  lable  for  the  taxes  thereon,  as  in  any  other 
life  tenant  (32  L.  E.  A.  744,  note).  But  this  principle  does 
not  extend  to  the  widow's  quarantine,  which,  as  we  have  seen, 
is  not  a  freehold  estate  (§  314,  ante);  and  as  between  the 
widow  and  the  heir,  the  burden  of  taxes  during  quarantine, 
falls  on  the  heir.  As  is  said  in  Simmons  v.  Lyles,  32  Grat. 
752,  758 :  "In  all  this  the  heir  has  no  just  cause  of  complaint. 
If  he  is  unwilling  to  pay  the  taxes  while  the  widow  is  in 
occupation  of  the  mansion-house,  all  he  has  to  do  is  to  assign 
her  dower,  and  thus  relieve  himself  of  the  taxes  on  one-third 
of  the  estate."  See,  in  accord,  Spinning  v.  Spinning,  41  ~N. 
J.  Eq.  427  (5  Atl.  278),  affirmed  in  43  N".  J.  Eq.  215  (10 
Atl.  270) ;  Smith  v.  Stephens,  164  Mo.  415  (64  S.  W.  260)  ; 
10  Am.  &  Eng.  Ency.  Law,  150;  2  Scribner,  Dower,  63. 
But  the  land  is  liable  for  taxes  by  virtue  of  the  State's  lien, 
even  when  held  by  right  of  quarantine.1  But  if,  through 
the  default  of  the  heir,  the  widow,  to  save  her  estate,  is  com- 
pelled to  pay  what  the  law  requires  him  to  pay,  she  may 
compel  him  to  refund  the  amount  so  paid  by  her  for  his 
benefit.    Simmons  v.  Lyles,  ante. 

3.  Interest  on  Encumbrances. — It  has  been  seen  that  when 

1  Lien  fob  Taxes.— The  Virginia  statute  (Acts  1902-3-4,  p.  660, 
set  out,  in  part  on  p.  504,  ante),  which  exempts  the  widow  during 
quarantine  from  the  payment  of  the  taxes,  expressly  declares  (at 
the  end):  "That  nothing  in  this  act  shall  be  construed  to  impair 
the  lien,  or  delay  the  enforcement  thereof,  of  the  State,  city  or 
county  for  the  taxes  assessed  upon  the  said  property." 


§§315,316]  DOWER    AND    CURTESY.  527 

dower  has  been  assigned  a  widow,  she  must  pay  the  interest 
on  one-third  of  a  mortgage  or  other  encumbrance  paramount 
to  dower  (§  309,  ante).  But  in  the  exercise  of  her  right  of 
quarantine,  the  widow  is  not  bound  to  pay  interest  on  such 
encumbrances;  and  this  duty  rests  on  the  heir  alone.  But  he 
can,  at  any  time,  devolve  upon  the  widow  her  proportion  of 
the  burden  by  assigning  her  dower.  Cronley  v.  Cronley,  40 
N.  J.  Eq.  40;  Becker  v.  Carey,  (X.  J.  Eq.)  36  Atl.  770; 
Gentry  v.  Gentry,  122  Mo.  202  (26  S.  W.  1090) ;  10  Am. 
&  Eng.  Ency.  Law,  150. 

As  to  the  widow's  remedies  in  the  matter  of  her  quarantine, 
there  is  great  diversity  in  the  several  States.  The  old  rem- 
edy was  a  writ  de  quarantina  habenda.  See  Aiken  v.  Aiken, 
12  Ir.  203  (6  Pac.  682).  The  remedy' in  the  United  States 
now  is  usually  unlawful  entry  or  detainer,  or  ejectment.  In 
Virginia,  by  the  statutes  in  force  since  July  1,  1850  (retained 
in  Virginia  Acts  1902-3-4,  p.  660,  amending  quarantine)  : 
"If  she  [the  widow]  be  deprived  of  such  mansion-house  and 
curtilage,  she  may,  on  complaint  of  unlawful  entry  or  de- 
tainer, recover  the  possession  thereof,  with  damages  for  the 
time  she  was  so  deprived." 

§  316.    Widow's  Unassigned  Dower — Nature  and  Incidents. 

— The  nature  of  the  wife's  inchoate  right  of  dower,  during 
the  coverture,  has  already  been  discussed  (p.  438,  ante, 
note;  also  Z  304).  We  have  now  to  consider  the  nature 
of  the  widow's  right  to  dower,  when  consummate,  indeed, 
by  the  death  of  her  husband,  but  as  yet  not  assigned  to  her. 
This  is  well  stated  in  Grubbs  v.  Leyendecker,  153  Ind.  348 
(53  N".  E.  940)  :  "The  right  to  have  dower  assigned,  and 
dower  assigned  and  set  apart,  are  very  different  matters.  The 
latter  does  constitute  an  estate  for  the  life  of  the  dowress. 
But  the  right  to  dower,  while  it  remains  unassigned,  is  not 
an  estate,  but  a  chose  in  action — a  consummate  right  merely, 
not  subject  to  execution,  nor  to  the  payment  of  taxes,  nor  to 
lease.  By  the  common  law,  the  widow  cannot  enter  for  her 
dower  until  it  is  assigned  to  her,  nor  can  she  alien  it  so  as  to 


528  REAL.    PROPERTY.  [Chap.  14 

enable  the  grantee  to  sue  for  it  in  his  own  name.  She  has 
no  estate  in  the  land  until  assignment;  and  after  the  expira- 
tion of  her  quarantine  [when  not  until  dower  assigned],  the 
heir  may  put  her  out  of  possession,  and  drive  her  to  her  suit 
for  dower.  It  is  not  until  her  dower  has  been  duly  assigned 
that  the  widow  acquires  a  vested  estate  for  life,  which  will 
enable  her  to  sustain  ejectment.  She  is  not  in  consequence 
of  her  right  of  dower  a  tenant  in  common  with  the  heirs  or 
devisees."  For  these  propositions,  many  cases  are  cited.  See, 
in  accord,  2  Scribner,  Dower,  25-51;  10  Am.  &  Eng.  Ency. 
Law,  146,  148. 

1.  No  Right  of  Entry  on  Unassigned  Dower. — At  common 
law,  on  the  death  of  the  husband,  the  seisin  is  cast  upon  the 
heir.  Until  her  dower  is  assigned  her,  the  widow  has  neither 
seisin  in  law,  nor  a  right  of  entry.  Simmons  v.  Lyles,  32 
Grat.  752;  Haskell  v.  Sutton,  53  W.  Va.  206  (44  S.  E.  533). 
This  denial  of  the  right  of  entry  to  the  widow  is  called  by 
Scribner  "an  anomaly  in  the  rules  of  the  common  law,"  and 
is  thus  explained  by  him :  "The  reason  of  the  law  in  denying 
any  right  of  entry  in  the  wife  [widow],  although  her  title 
is  consummate,  is  to  be  found  in  the  injustice  which  would 
arise  from  permitting  her  to  be  hex  own  judge  of  the  par- 
ticular lands  which  she  should  have  for  her  dower — "to  carve 
for  herself,"  as  Gilbert,  C.  B.,  expresses  it;  while,  on  the 
other  hand,  the  law  in  favor  of  the  widow,  would  not  subject 
her  to  the  inconvenience  of  holding  an  undivided  part  in 
common  for  her  dower,  where  the  nature  of  the  property 
admitted  of  an  endowment  in  severalty."  2  Scribner,  Dower, 
27,  28.  And  as  the  widow  before  assignment  of  dower  has 
no  estate  in  the  land,  she  cannot  file  a  bill  for  partition,  and 
for  sale  of  the  land  and  dower  in  the  proceeds,  if  dower  in 
kind  be  impracticable.  She  is  not  a  tenant  in  common  with 
the  heir  or  devisee.  Grubbs  v.  Leyendecker,  supra;  White  v. 
White,  16  Grat.  264  (80  Am.  Dec.  706)  ;  Harste  v.  Hotaling. 
20  Neb.  178  (29  N.  W.  299)  ;  Walker  v.  Doane,  131  111.  27 
(22  N.  E.  1006);  Hull  v.  Hull,  26  W.  Ya.  1;  Hoback  v. 


§  316]  DOWER    AND    CURTESY.  529 

Miller,  44  W.  Va.  635  (29  S.  E.  1014) ;  Haskell  v.  Sutton, 
53  W.  Va.  206  (44  S.  E.  533). x 

1  Assignment  of  Dower  in  a  Partition  Suit. — For  the  Virginia 
statute  and  decisions  as  to  partition,  see  §  §  162-164,  ante,  and 
notes.  It  is  settled  that  the  widow  is  not  a  "tenant  in  common, 
joint-tenant,  or  coparcener,"  with  the  heir  or  devisee,  within  the 
usual  language  of  the  partition  statutes;  and  she  cannot,  there- 
fore, by  virtue  of  her  right  to  have  dower  assigned  her  file  a  bill 
for  partition  in  order  to  obtain  therein  either  the  assignment  of 
her  dower  in  kind,  or  a  sale  and  dower  in  the  proceeds.  Her  rem- 
edy is  in  a  proceeding  brought  directly  for  her  dower.  See,  in  ad- 
dition to  authorities  cited  in  §  316,  2  Scribner,  Dower,  32,  176, 
note;  21  Am.  &  Eng.  Ency.  Law,  1155;  Coles  v.  Coles,  15  Johns  (N. 
Y.)  319;  Liederkranz  Society  v.  Beck,  8  Bush.  (Ky.)  597;  Rey- 
nolds v.  McCurry,  100  111.  356;  1  Lomax  Dig.  92. 

It  has  also  been  held,  under  the  general  statutes  of  partition, 
that  a  widow's  right  to  dower  does  not  make  her  a  proper  party 
defendant  to  a  suit  for  partition  brought  by  one  of  the  heirs  as  a 
coparcener;  that  her  right  to  dower  is  paramount,  and  will  attach, 
on  partition,  to  the  shares  assigned  the  heirs  in  severalty,  but  that 
it  is  no  bar  to  the  partition.  21  Am.  &  Eng.  Ency.  Law,  1155; 
15  Ency.  PI.  &  Prac.  797;  Bradshaiv  v.  Callaglian,  5  Johns  (N.  Y.) 
78;  S.  C.  8  Johns  435;  Ward  v.  Gardner,  112  Mass.  42;  Leonard  v. 
Motley,  75  Me.  418.  But  this  inconvenient  rule,  which  compels 
the  widow  to  seek  her  dower  in  separate  suits  against  the  several 
heirs  or  devisees,  instead  of  obtaining  it,  once  for  all,  in  the  par- 
tition proceeding,  has  been  changed  by  statute  in  a  number  of  the 
States.  Thus,  in  Ohio,  by  statute,  in  proceedings  for  partition,  a 
widow  entitled  to  dower  must  be  made  a  party;  and  the  commis- 
sioners who  make  the  partition  are  required  to  set  off  to  her  the 
share  to  which  she  is  entitled.  And  the  same  is  the  law  in  Illi- 
nois and  other  States.  See  2  Scribner,  Dower,  187,  188;  Barclay 
v.  Kerr,  110  Pa.  St.  130;  Green  v.  Putnam,  1  Barb.  (N.  Y.)  500. 
And  in  Virginia  it  is  held,  without  the  aid  of  statute,  that  upon  a 
bill  filed  by  an  heir  for  partition,  when  the  widow  is  alive  and  en- 
titled to  dower,  she  should  be  a  party  to  the  suit,  and  her  dower 
should  be  assigned  her,  and  partition  made  of  the  residue;  and 
that  it  is  error  to  proceed  in  her  absence,  and  make  partition  of 
the  land  subject  to  her  right  of  dower.  Custis  v.  Snead,  12  Grat. 
260.     And  see  Hurste  v.  Hotaling,  20  Neb.  178  (29  N.  W.  299). 

And  in  White  v.  White,  16  Grat.  (Va.)  264  (80  Am.  Dec.  706),  it 
is  held,  under  the  general  powers  of  a  court  of  equity  that  where 

34 


530 


REAL,    PROPERTY.  [Chap.  14 


:.  Unassigned  Dower  Inalienable  by  Widow.— It  is  well 
settled  that  at  law,  in  the  absence  of  statute,  a  widow's  unas- 
signed dower,  being  no  estate,  but  a  right  in  the  nature  of  a 
chose  in  action,  cannot  be  conveyed  by  her,  except  by  way  of 
release  to  the  terre  tenant  (i.  e.,  heir,  devisee,  or  alienee).  2 
ScribneT,  Dower,  42;  10  Am.  &  Eng.  Ency.  Law  147.  But 
equity  will  enforce  such  an  assignment,  and  the  right  to 
assign  is  sometimes  conferred  by  statute,  and  has  been  recog- 
nized in  some  of  the  Code  States.  Brandon  v.  Wilkinson, 
(Ala.)  9  South.  187;  Weaver  v.  Bush,  62  Ark.  51  (34  S.  W. 
256) ;  Hook  v.  Garfield  Coal  Co.,  112  la.  210  (83  N.  W. 
963)  ;  Union  Brewing  Co.  v.  Meier,  163  111.  424  (45  N.  E. 
264) ;  Sells  v.  McAnaw,  138  Mo.  267  (39  S.  W.  779) ;  Par- 
ton  v.  Allison,  111  N.  C.  429  (16  S.  E.  415);  Morgan  v. 
Blatchley,  33  W.  Va.  155  (10  S.  E.  282). 

Most  of  the  above  cases,  while  denying  the  alienability  of 
unassigned  dower  at  law,  recognize  that  equity  will  enforce 
such  assignment.  That  the  widow  may  release  at  law  to  the 
terre  tenant,  see  Saunders  v.  Blytlie,  112  Mo.  1  (20  S.  W. 
319) ;  Lewis  v.  King,  180  111.  259  (54  N.  E.  330) ;  Tucker 
v.  Tucker,  (Tenn.)  45  S.  W.  344.    In  Missouri,  the  widow's 

a  widow  is  made  a  party  defendant  to  a  bill  for  partition  filed  by 
an  heir,  the  court  may  assign  her  dower  in  such  suit  in  kind;  or 
if  this  be  impracticable,  may  decree  a  sale  of  the  whole  property, 
and  assign  her  dower  in  the  proceeds.  ( See  as  to  sale,  §  319,  infra, 
and  note.)  But  as  the  widow  is  not  within  the  purview  of  the 
statute  of  partition,  no  power  of  sale  of  the  whole  property  is  de- 
rived therefrom;  and  if  dower  in  kind  be  not  impracticable,  the 
court  cannot  order  a  sale  of  the  whole  property  under  the  statute 
of  partition,  Code  of  1849,  ch.  124,  §  2,  declaring  that  this  may  be 
done  "if  the  interest  of  the  parties  will  be  promoted  by  a  sale  of 
the  entire  subject."  But  unless  the  widow  consents  to  such  sale, 
and  a  monied  compensation  out  of  the  proceeds,  she  must  have  her 
dower  in  kind;  and  the  sale,  for  division  among  the  heirs,  must  be 
of  the  residue  of  the  property  subject  to  her  dower  thus  assigned; 
i.  e.,  two-thirds  of  the  estate  in  fee  simple,  and  the  reversion  in 
fee  after  the  life  estate  of  the  widow  in  the  other  third. 


§316]  DOWER    AND    CURTESY.  531 

assignee  may  now,  by  statute,  bring  ejectment,  in  his  own 
name,  to  have  dower  assigned.  Cassidy  v.  Pound,  167  Mo. 
605  (67  S.  W.  283).  In  Minnesota,  the  widow's  assignee 
may,  under  the  Code,  sue  in  his  own  name.  Dobberstein  v. 
Murphy,  64  Minn.  127  (66  N".  W.  204).  See,  also,  Strong 
v.  Clem,  12  Ind.  37  (74  Am.  Dec.  200);  Payne  v.  Becker, 
87  N".  Y.  153;  Berry  v.  Curry,  26  Neb.  353  (4  N.  W.  97). 
But  in  Galbraith  v.  Fleming,  60  Mich.  403  (27  N.  W.  583), 
it  is  held  that  the  statute  empowering  any  assignee  of  any 
chose  in  action  to  sue  and  recover  in  his  own  name  does  not 
authorize  the  assignee  of  a  widow's  unassigned  dower  to  bring 
ejectment  against  the  heir  to  compel  its  assignment. 

3.  Unassigned  Dower  is  not  Liable  at  Law  for  the  Widow's 
Debts. — It  is  settled  that  unassigned  dower,  for  the  same 
reasons  that  it  is  not  alienable  at  law  by  the  widow,  is  not 
liable  to  involuntary  alienation  at  law,  by  levy  and  sale  on 
execution,  for  the  widow's  debts.  2  Scribner,  Dower,  39 ;  23 
L.  E.  A.  647,  note.  But  in  Missouri  it  is  provided  by  statute 
that  a  creditor  of  a  widow  may  have  her  dower  assigned,  and 
thus  render  it  liable  to  execution  at  law  for  her  debts.  Waller 
v.  Mardus,  29  Mo.  25. 

Whether  in  equity  a  widow's  unassigned  right  of  dower 
can  be,  by  creditors'  bill  or  otherwise,  subjected  to  the  pay- 
ment of  her  debts,  in  the  absence  of  a  statute  authorizing  it, 
is  a  much-mooted  question.  In  recent  decisions,  the  answer 
has  been  thought  to  depend  on  whether  equity,  in  the  absence 
of  statute,  can  subject  choses  in  action  to  the  payment  of 
debts — itself  a  disputed  point.  The  trend  of  authority  is  at 
present  against  the  right  of  equity,  in  the  absence  of  statute, 
to  subject  her  unassigned  dower  to  the  payment  of  a  widow's 
debts.  See,  on  the  whole  subject,  2  Scribner,  Dower,  47;  2 
Pom.  Eq.  (2d  ed.),  §  1383;  Ager  v.  Murray,  105  IT.  S.  126, 
129;  Greene  v.  Keene,  14  R.  I.  388  (51  Am.  Rep.  400); 
Maxon  v.  Gray,  14  R.  I.  641;  Maxon  v.  Bishop,  15  R.  I.  475 
(8  Atl.  696)  ;  Boltz  v  Stoltz,  41  Ohio,  540;  Payne  v.  Becker, 
87  N.  Y.  153;  McMahon  v.  Gray,  150  Mass.  289  (22  K  E. 
923,  15  Am.  St.  Rep.  202,  5  L.  R.  A.  748) ;  Harper  v.  Clay- 


532  REAL    PROPERTY.  [Chap.  14 

ton,  84  Md.  316  (35  Atl.  1083,  57  Am.  St.  Eep.  407,  35  L. 
E.  A.  211) ;  Boer  v.  Ballingall,  37  Or.  416  (61  Pac.  852). 

§  317.    Assignment    of    Dower — Procedure. — By    Virginia 

Acts  1895-'96,  c.  270,  p.  309,  amending  §  2275  of  the 
Code  of  1887:  "Dower  may  be  assigned  as  at  common  law; 
or,  upon  the  motion  of  the  heirs,  devisees,  or  alienees,  or  any 
of  them,  the  court  in  which  the  will  of  the  husband  is  ad- 
mitted to  record,  or  administration  of  his  estate  is  granted,  or 
the  conveyance  of  the  alienee  is  recorded,  may  appoint  com- 
missioners by  whom  the  dower  may  be  assigned,  and  the 
assignment,  when  confirmed  by  the  court,  shall  have  the  same 
effect  as  if  made  by  the  heir  at  common  law;  but  nothing 
herein  contained  shall  be  construed  to  take  away  or  affect  the 
jurisdiction  which  courts  of  chancery  now  exercise  on  the  sub- 
ject of  dower." 

At  common  law  an  action  of  ejectment  would  not  lie  to 
recover  dower  because,  before  assignment,  the  widow  had 
no  right  of  entry  (§  316,  ante).  But  this  is  changed  in  Vir- 
ginia by  Code  1849,  c.  110,  §  10  (Code  1887,  §  2276),  de- 
claring :  "A  widow  having  a  right  of  dower  in  any  real  estate 
may  recover  the  said  dower,  and  damages  for  its  being  with- 
held, by  such  remedy  at  law  as  would  lie  on  behalf  of  a  tenant 
for  life  having  a  right  of  entry."  And  by  Code  1887,  §  2750 : 
"If  the  action  [ejectment]  be  brought  to  recover  dower, 
which  has  not  been  assigned  before  the  commencement  of 
such  action,  the  court  in  which  the  judgment  is  rendered  may 
have  dower  assigned  by  commissioners  appointed  for  that  pur- 
pose." 2  Min.  Ins.  162;  Hulvey  v.  Hulvey,  92  Va,  182.  For 
recovery  of  dower  by  ejectment  under  the  statutes  of  other 
States,  see  10  Am.  &  Eng.  Ency.  Law,  173;  7  Ency.  PL  & 
Prac.  284;  18  L.  E.  A.  790,  note. 

The  old  actions  to  recover  dower — viz.,  the  writ  of  right  of 
dower,  and  the  writ  of  dower  unde  nihil  liabet,  are  abolished 
or  obsolete  in  the  United  States  generally  (7  Ency.  PI.  and 
Prac.  284;  2  Min.  Ins.  (4th  ed.)  161);  and  the  modes  of 
assignment  of  dower,  besides   ejectment   above  referred  to, 


§§316,317]  DOWER    AND    CURTESY.  533 

are  (as  recognized  by  the  Virginia,  statute  above)  three  in 
number:  (1)  by  the  tenant  of  the  freehold,  as  at  common 
law;  (2)  by  summary  proceeding  in  court  on  motion;  and 
(3)  by  a  bill  in  equity.    Of  these  in  their  order: 

1.  Dower  Assigned  in  Pais  by  the  Tenant  of  the  Free- 
hold.— It  is  well  settled  at  common  law  that  immediately  on 
the  husband's  death  the  duty  devolves  upon  the  heir  or  other 
tenant  of  the  freehold  to  assign  the  widow  her  dower;  and 
that  this  may  be  done  in  pais,  without  resort  to  judicial  pro- 
ceedings. Moreover,  the  assignment  may  be  by  parol,  Coke 
Litt.  35a;  Pearce  v.  Pearce,  184  111.  289  (56  N.  E.  311); 
and  though  the  widow  thereby  becomes  seised  of  a  freehold 
estate,  no  livery  of  seisin  is  necessary.  For,  as  stated  by  Park 
(on  Dower,  269)  :  "Although  no  estate  is  vested  in  the  dow- 
ress  until  the  certainty  of  the  land  is  ascertained  by  assign- 
ment, yet  as  the  estate,  although  suspended  in  the  meantime, 
does  not  pass  by  the  assignment,  but  the  dowress  is  in,  in  in- 
tendment of  law,  by  her  husband,  neither  livery  nor  writing  is 
essential  to  the  validity  of  the  assignment."   (See  §  288,  ante). 

But  only  the  tenant  of  the  freehold  could  thus  voluntarily 
assign  dower,  as  indeed  only  such  tenant  was  legally  com- 
pellable to  assign  it.  This  doctrine  grew  out  of  the  nature  of 
the  real  actions  for  the  recovery  of  dower,  and  was  intended 
for  the  protection  of  the  inheritance.  It  is,  however,  still 
law,  unless  changed  by  statute;  and,  therefore,  a  tenant  for 
years  cannot  assign  dower.  Drost  v.  Hall,  52  N.  J.  Eq.  68 
(28  Atl.  81).  But  dower  may  be  assigned  by  the  heir,  de- 
visee, alienee  of  the  husband,  alienee  of  the  heir,  and  even 
by  a  disseisor.  See,  on  the  whole  subject,  Coke  Litt.  35a; 
2  Scribner,  Dower,  pp.  71-89;  10  Am.  &  Eng.  Ency.  Law, 
171-2;  Austin  v.  Austin,  50  Me.  74  (79  Am.  Dec.  597,  and 
note,  p.  600)  ;  39  Am.  St.  Eep.  32,  note;  Miller  v.  Beverly, 
1  H.  &  M.  (Va.)  367;  Moore  v.  Waller,  2  Band.  (Va.)  418; 
Lenfers  v.  HenJce,  73  111.  405  (24  Am.  Eep.  263);  Robinson 
v.  Miller,  1  B.  Mon.  (Ivy.)  88.1 

1  Doweb  Assigned  in  Pais  by  the  Tenant  of  the  Fbeehold — 


534  REAL,    PROPERTY.  [Chap.  14 

2.  Dower  Assigned  by  Summary  Proceeding  in  Court  on 
Motion. — The  Virginia  statute  is  set  out  above,  §  317.  Simi- 
lar statutes  are  found  in  the  United  States  generally,  pro- 
viding a  summary  note  for  obtaining  the  assignment  of 
dower  by  application  to  courts  having  jurisdiction  of  probate 

Must  Widow  Assent  Thereto? — There  is  no  doubt  that  the  assign- 
ment of  dower  against  common  light  (see  §  318,  post)  is  not  bind- 
ing on  the  widow  without  her  acceptance  (Park,  Dower,  266; 
Roper,  Husband  and  Wife,  392;  2  Scribner,  Dower,  82);  but 
whether  her  acceptance  is  necessary  when  the  heir,  or  other  ten- 
ant of  the  freehold,  assigns  her  dower  according  to  common  right 
(e.  g.,  in  kind,  by  metes  and  bounds,  in  the  land  itself  of  which 
she  is  dowable  )  appears  uncertain.  That  the  assignment  when 
made  according  to  common  right  is  good  without  the  widow's  as- 
sent is  inferable  from  the  above  authorities  declaring  that  when 
against  common  right  it  must  be  made  with  the  widow's  assent, 
but  prescribing  no  such  condition  in  the  former  case.  On  the  other 
hand,  Lord  Coke  (Coke  Litt.  32  6;  2  Tho.  Co.  589)  says  of  dower 
at  common  law:  "There  must  be  assignment,  either  by  the  sheriff, 
by  the  King's  writ,  or  else  by  the  heir  or  other  tenant  of  the  land, 
by  consent  and  agreement  between  them";  i.  e.,  consent  and  agree- 
ment between  the  widow  and  heir.  And  that  the  widow's  consent 
is  necessary,  see,  also,  Austin  v.  Austin,  50  Me.  74  (79  Am.  Dec. 
597) ;  Clark  v.  Muzzey,  43  N.  H.  59;  10  Am.  &  Eng.  Ency.  Law,  172. 
The  true  doctrine  (in  the  absence  of  statute  requiring  the  wid- 
ow's consent,  (as  to  which  see  2  Scribner,  Dower,  72)  is  be- 
lieved to  be  that  the  heir's  (or  other  terre  tenant's)  assignment  of 
dower  to  the  widow,  according  to  common  right,  does  not  require 
her  assent  to  be  prima  facie  valid  and  binding;  but  nevertheless, 
if  she  has  not  assented  to  it,  she  may  set  it  aside  if  it  be  inade- 
quate or  unfair.  This  much  could  hardly  be  denied  the  widow, 
as  the  dower  is  assigned  her  by  one  whose  interest  is  adverse  to 
hers.  Thus  Blackstone  says  (2  Com.  136):  "If  the  heir  or  his 
guardian  do  not  assign  her  dower  within  the  term  of  quarantine, 
or  do  assign  it  unfairly,  she  has  her  remedy  at  law,  and  the  sher- 
iff is  appointed  to  assign."  And  in  2  Scribner,  Dower,  71,  it  is 
said :  "The  person  on  whom  the  right  or  duty  is  devolved  of  mak- 
ing the  assignment  may  at  once  proceed  to  set  apart  to  the  widow 
her  proportion  of  the  estate;  and,  if  this  be  fairly  done,  it  is  as 
effectual  and  binding  as  if  performed  under  a  judgment  or  decree 
of  the  court."  This  certainly  implies  that  if  not  fairly  done,  the 
widow  is  not  bound,  unless  indeed  she  is  estopped  by  her  accept- 


§  317]  DOWER    AND    CURTESY.  535 

matters.  See  2  Scribner,  Dower,  175-204;  7  Ency.  PL  & 
Prac.  186.  The  Virginia  statute  is  part  of  the  revision  of 
1849,  and  gives  legislative  sanction  to  a  proceeding  already 
in  vogue,  and  which  had  been  approved  by  the  Court  of 
Appeals  as  tantamount  to  the  heir's  assignment  at  common 
law.  See  Moore  v.  Waller,  2  Eand.  418,  422,  where  it  is 
said :  "It  is  no  objection  that  the  assignment  in  this  case  was 
made  by  commissioners,  under  an  order  of  the  county  court. 
That  order  was  made  at  the  instance  of  the  heir,  and  the 
assignment  by  them  was  his  assignment."  And,  see  Eeport 
of  Bevisors,  1849,  p.  566,  note.  But  it  is  held  in  Virginia 
that  the  motion,  following  the  language  of  the  statute,  must 
be  made  by  the  "heirs,  devisees,  or  alienees,  or  any  of  them," 
and  cannot  be  made  by  the  widow.  Raper  v.  Sanders,  21 
Grat.  74;  Helm  v.  Helm,  30  Grat.  404,  414.  And,  see  Jones 
v.  Fox,  20  W.  Va.  3770.  But  the  objection  that  the  motion 
was  not  made  by  an  heir,  devisee,  or  alienee,  cannot  be  made 
for  the  first  time  in  an  appellate  court.  Parrish  v.  Parrish, 
88  Va.  529,  532. 

3.  Dower  Assigned  by  Bill  in  Equity. — It  is  now  settled 
that  equity  has,  in  all  cases,  concurrent  jurisdiction  with 
courts  of  law  to  assign  dower  in  legal  estates,  and  exclusive 
jurisdiction  over  dower  in  equitable  estates.  2  Scribner, 
Dower,  145-173.  And,  see  2  Pom.  Eq.,  §  1382,  where  it  is 
said:  "'Although  it  was  at  one  time  supposed  that  the  juris- 
diction of  equity  was  ancillary,  and  could  not  attach  in  the 
absence  of  impediments  at  law,  it  is  now  well  settled  that 
courts  of  equity  have  concurrent  jurisdiction  in  cases  of  legal 
dower,  or  dower  in  legal  estates.  The  advantages  of  equitable 
procedure  are  obvious.  An  outstanding  term  could  be  re- 
moved and  satisfied;  a  partition  in  the  case  of  undivided 
interests  could  be  decreed,  and  an  account  could  be  taken : 

ance.  And  in  Moore  v.  Waller,  2  Rand.  (Va.)  418,  it  is  said:  "The 
widow  is  bound  to  accept  an  assignment  made  by  him  [the  heir], 
provided  it  be  a  full  and  just  assignment."  For  discussion  of  the 
subject,  see  note  to  Sanders  v.  McMillian  (Ala.)  39  Am.  St. 
Rep.  32. 


536  REAL    PROPERTY.  [Chap.  14 

fraudulent  conveyances  could  be  cancelled;  and  antagonistic 
claims  to  the  subject  matter  could  be  determined  without 
multiplicity  of  suits."  And  see  Campbell  v.  Murphy,  55  N. 
C,  357. 

In  Virginia,  the  Act  of  1895-'96,  c.  270,  providing  for  pro- 
ceeding to  assign  dower  on  motion  (§  317,  ante)  expressly 
preserves  the  jurisdiction  of  courts  of  chancery.  And,  C.  V., 
§  2276  (p.  516  ante),  providing  that  a  widow  may  bring  eject- 
ment for  the  assignment  of  her  dower  also  expressly  declares, 
as  an  alternative,  that  she  "may  recover  the  said  dower  and 
damages  for  its  being  withheld  by  a  bill  in  equity,  where  the 
ease  is  such  that  a  bill  would  now  lie  for  dower" — which  Pro- 
fessor Minor  believes  (no  doubt  correctly)  to  be  "in  all 
cases."  See  2  Min.  Ins.  (4th  ed.)  162.  Also,  Campbell  v. 
Murphy,  55  N.  C.  357. 

§  318.  Dower  According  to  Common  Right. — This  signi- 
fies the  widow's  right  of  dower  by  the  common  law,  to  which 
she  is  entitled  of  common  right,  unless  by  agreement 
with  the  heir,  or  other  ierre  tenant,  she  has  waived  her  com- 
mon-law right,  and  consented  to  be  otherwise  endowed.  When 
this  is  the  case,  she  is  said  to  be  endowed  against  common 
right  2  Tho.  Co.  459-462;  Park  on  Dower,  250;  1  Eoper, 
H.  &  W.  236 ;  2  Scribner,  Dower,  80. 

The  widow's  common-law  right  of  dower  is  thus  stated  by 
Littleton  (§  36)  :  "The  wife,  after  the  decease  of  her  hus- 
band, shall  be  endowed  of  the  third  part  of  such  lands  and 
tenements  as  were  her  husband's  at  any  time  during  the  cover- 
ture, to  have  and  to  hold  to  the  same  wife  in  severalty  by 
metes  and  bounds  for  term  of  her  life."  This  is  dower  in 
l-ind  (i.  e.,  parcel  of  the  lands  themselves)  ;  and  this  is  still 
recognized  as  the  dower  right  of  the  wife,  unless  it  be  imprac- 
ticable to  accord  her  possession  in  severalty,  by  metes  and 
bounds,  of  that  of  which  she  is  dowable.1    When  dower  in 

1  Dower  in  Kind.— In  the  quotation  from  Littleton  above,  it  is 
said  that  "the  wife  shall  be  endowed  of  the  third  part  of  such 
lands  and  tenements,"  etc.     But  this  does  not  mean  the  third  part 


§§317,318]  DOWER    AND    CURTESY.  537 

kind  is  impracticable,  the  common  law  provides  a  different 
mode  of  endowment;  but  this  different  mode  is  still  "accord- 
ing to  common  right/'  because  the  widow  has  no  right  to  be 
otherwise  endowed.  When,  however,  dower  in  kind  is  prac- 
ticable, then  any  other  mode  of  endowment  is  "against  com- 
mon right." 

Thus  Lord  Coke,  after  quoting  Littleton  as  above,  says 
(2  Tho.  Co.  581)  :  "Albeit,  of  many  inheritances  that  be 
entire,  whereof  no  division  can  be  made  by  metes  and  bounds, 

of  the  lands  by  measurement  merely  (as  100  acres  out  of  300),  nor 
the  third  part  of  the  fee  simple  value;  for,  in  the  first  place,  the 
land  assigned  the  widow  might  be  barren  and  well-nigh  worthless, 
and,  in  the  second  place,  though  its  fee  simple  value  might  be 
great  (as  unimproved  property  in  a  city),  yet  little  or  no  income 
might  be  derivable  therefrom.  And  the  law  looks  to  the  annual 
produce  or  income  as  a  provision  for  the  widow's  support. 

The  rule  as  to  assignment  is  thus  laid  down  in  Leonard  v.  Leon- 
ard, 4  Mass.  533:  "In  the  assignment  of  dower,  commissioners  are 
to  regard  the  rents  and  profits  only  of  the  several  parcels  of  the 
estate  out  of  which  dower  is  to  be  assigned.  When  they  have  as- 
certained the  annual  income  of  the  whole  estate,  they  ought  to  set 
off  to  the  widow  such  a  part  as  will  yield  her  one-third  part  of 
such  income,  in  parcels  best  calculated  for  the  convenience  of  her- 
self and  of  the  heirs.  This  rule  is  adapted  equally  to  protect 
widows  from  having  an  unproductive  part  of  the  estate  assigned  to 
them,  and  to  guard  heirs  from  being  left,  during  the  life  of  the 
widow,  without  means  of  support."  See,  in  accord,  1  Bishop,  Mar. 
Worn.  §  334;  2  Scribner,  Dower,  599;  10  Am.  &  Eng.  Ency.  Law, 
185;  39  Am.  St.  Rep.  p.  35  note;  Smith  v.  Smith,  5  Dana  (Ky.) 
179;  Devaughn  v.  Devaughn,  19  Grat.  556,  557. 

In  Fuller  v.  Conrad,  94  Va.  233  (26  S.  E.  575)  the  court,  after 
quoting  with  approval  the  rule  laid  down  in  Leonard  v.  Leonard, 
supra,  proceeds  as  follows:  "These  principles  have  not  been  ob- 
served in  this  case.  The  court  in  its  decree,  and  the  commission- 
ers in  their  report,  seem  to  have  regarded  the  fee  simple  value 
alone  in  determining  the  widow's  rights.  The  estate  in  which  the 
appellant  is  entitled  to  dower  is  valued  at  $69,750,  and  consists  al- 
most entirely  of  highly  improved  city  property.  Of  this  $23,250 
in  fee  simple  value  is  assigned  the  widow,  in  which  assignment  is 
included  the  only  property  without  power  to  produce  income  be- 
longing to  the  estate,  valued  at  $6,250,  thus  imposing  upon  the 


538  REAL    PROPERTY.  [Chap.  14 

yet  a  woman  shall  be  endowed  thereof  in  a  special  and  cer- 
tain manner.  As  of  a  mill,  the  widow  shall  not  be  endowed 
by  metes  and  bounds,  nor  in  common  with  the  heir,  but  either 
she  shall  be  endowed  of  the  third  toll  dish,  or  of  the  entire 
mill  for  every  third  month."1  This  is  evidently  considered 
by  Coke  to  be  dower  according  to  common  right,  and  it  is  so 
treated  by  both  Park  (on  Dower,  115)  and  Eoper  (on  Hus- 
band and  wife,  239).     Here  dower  in  kind  is  impracticable, 

widow  a  burden  in  taxes,  without  the  benefit  of  any  income,  from 
more  than  one-fourth  of  the  property  assigned  her,  while  all  of  the 
$46,500  worth  of  property  reserved  to  the  heirs  has  income  produc- 
ing capacity.  The  record  clearly  shows  that  under  the  division 
made  the  appellant  falls  short  of  getting  her  just  proportion  of  the 
estate  in  rental  value." 

As  a  detail  of  assignment  it  may  be  added  that  it  is  well  settled 
that,  in  the  absence  of  statute,  the  widow  cannot  demand  as  a  mat- 
ter of  right  that  the  mansion-house  be  included  in  her  dower, 
though  this  is  usually  and  properly  done  if  the  widow  desires  it. 
Quarantine  gives  a  right  to  the  possession  of  the  mansion-house 
(§  313,  ante),  but  not  dower.  Park  on  Dower,  254;  2  Scribner, 
Dower,  81,  600;  39  Am.  St.  Rep.  34,  note;  Taylor  v.  Lusk,  7  J.  J. 
Marsh  (Ky.),  636;  Dungan  v.  Bryant,  20  S.  W.  1100;  Devaughn  v. 
Devauglm,  19  Grat.  556. 

1  Special  Endowment.— Coke  adds  to  the  quotation  above :  "A 
woman  shall  be  endowed  or  the  third  part  of  the  profits  of  stall- 
age [i.  e.,  liberty  of  having  stalls  in  a  fair  or  market] ;  of  the 
third  part  of  the  profits  of  a  fair;  of  the  third  part  of  the  profits 
of  the  office  of  marshal-sea;  of  the  third  part  of  the  profits  of  the 
keeping  of  a  park;  of  the  third  part  of  the  profits  of  a  dove- 
house;  and  likewise  of  the  third  part  of  a  piscary — viz.,  the  third 
fish  or  the  third  cast  of  the  net;  of  the  third  presentation  to  an 
advowson."  And,  see  Macaulay  v.  Dismal  Swamp  Land  Co.,  2 
Rob.  (Va.)  507,  524,  where  it  is  said  of  the  widow's  dower:  "Her 
essential  right  is  to  the  profits  of  one-third  of  her  husband's  real 
estate  of  inheritance,  whereof  he  was  seised  at  any  time  during 
the  coverture;  and  she  is  entitled  for  that  purpose  to  the  several 
possession  of  one-third  of  the  subject,  if  susceptible  of  a  division 
by  metes  and  bounds.  If  the  subject  be  not  so  partible,  still  she 
is  admitted  to  her  due  participation  of  the  profits;  and  the  mode 
of  enjoyment  is  adapted  to  the  nature  of  the  case.  The  nature  of 
the  property  [i.  e.,  whether  corporeal  or  incorporeal,  see  §§  5,  6, 


§  318]  DOWER    AND    CURTESY.  539 

from  the  nature  of  the  property.  But  it  may  also  be  im- 
practicable from  the  nature  of  the  husband's  estate  in  the 
property,  as  when  he  dies  seised  of  land  held  in  common  or 
in  coparcenary.  Here  the  wife  cannot  have  her  dower  as- 
signed by  metes  and  bounds  in  severalty;  but  an  undivided 
third  part  of  the  share  of  her  husband  is  assigned  her  to  hold 
in  common  with  the  husband's  heir,  and  the  other  co-tenant 
or  co-tenants.  Park,  on  Dower,  115;  2  Scribner,  Dower,  80; 
Parrish  v.  Parrish,  85  Va.  529  (14  S.  E.  529).  And  yet 
this  is  dower  "according  to  common  right,"  because  dower  in 
kind  is  impracticable.1 

ante]  is  wholly  immaterial  as  regards  the  right  to  dower,  provided 
it  be,  or  savor  of,  the  realty;  and  this  is  equally  true  in  regard 
to  the  nature  of  its  products.  Thus  a  widow  is  dowable  of  lands, 
whether  arable,  meadow,  or  woodland;  of  manors,  houses,  mills, 
and  factories;  of  rents,  whether  rent-charge,  rent-seek,  or  rent- 
service;  of  dove-cotes  and  warrens;  of  fairs,  markets,  ferries,  and 
fisheries;  of  common,  certain,  gross,  or  appendant;  of  advowsons, 
gross,  or  appendant;  of  tithes,  of  shares  in  road  or  navigation 
companies,"  etc.  As  to  the  dower  in  "shares  of  road  and  navigation 
companies,"  this  is,  of  course,  when  by  statute  such  shares  are 
real  estate,  as  shares  in  the  navigation  of  the  river  Avon.  Breck- 
eridge  v.  Ingram,  2  Ves.  Jr.  652.   See  p.  15,  ante,  note. 

1  Advantages  of  Dower  According  to  Common  Right. — These 
are  two  in  number,  and  both  are  conferred  on  the  widow  by  rea- 
son of  the  fact  that  dower  according  to  common  right  is  the  law's 
provision,  which,  if  fairly  made,  she  is  bound  to  accept,  and 
therefore  the  law  will  not  suffer  it  to  be  impaired  or  destroyed. 

1.  Dower  assigned  the  widow  according  to  common  right  is 
paramount  to  encumbrances  created  after  the  coverture,  unless 
with  the  wife's  concurrence.  See  §  299,  ante.  For,  as  stated  by 
Roper  (on  H.  &  W.  Vol.  I.,  411) :  "When  dower  is  assigned  as  the 
common  law  requires,  the  widow's  title  shall  have  such  relation 
to  the  husband's  first  and  original  seisin  of  the  estate,  and  the 
period  of  the  marriage,  as  to  defeat  not  only  all  charges  and  en- 
cumbrances which  he  alone  made  during  the  coverture,  after  ac- 
quiring the  estate,  but  also  all  debts  which  he  contracted  during 
the  marriage  in  respect  of  which  such  property  might  be  affected, 
without  regard  to  the  circumstances,  whether  the  debts  might 
be  owing  to  a  private  person  or  to  the  crown."   But  he  adds  (p. 


540  REAL    PROPERTY.  [Chap.  14 

On  the  other  hand,  the  following  instances  of  assignment 
of  dower  "against  common  right"  are  given  by  Park  (on 
Dower,  262),  not  being  in  kind,  or  not  in  severalty,  when 
assignment  in  kind  and  in  severalty  is  not  impracticable: 
•'Thus  the  heir  may,  on  the  acceptance  of  the  widow,  assign 
one  manor  in  lieu  of  a  third  part  of  each  of  three  manors ;  or 
he  may  assign  an  undivided  third  part  in  common  [when 
the  husband  died  sole  seised]  in  lieu  of  a  third  part  in  sev- 
eralty." And  it  is  added  that,  with  the  consent  of  the  widow, 
the  heir  may  (1)  assign  her  as  her  dower  more  or  less  than 
one-third  of  the  land  of  which  she  is  dowable;  or  (2)  may 
assign  her  land  of  the  husband  in  Wales  in  exclusion  of  her 

412):  "But  when  a  different  form  and  rule  are  adopted  by  the 
consent  of  the  widow  [i.  e.,  dower  against  common  right],  she 
claims  in  the  nature  of  a  purchaser;  so  that  her  estate  com- 
mences from  the  assignment,  without  relation  to  any  antecedent 
period;  for  which  reason  she  takes  it  with  all  the  encumbrances 
affecting  it  in  the  possession  of  her  husband;  and  it  was  her  own 
folly  to  accept  of  such  an  assignment."  And,  see  Coke  Litt.  32b, 
where  it  is  said:  "Nota,  the  endowment  by  metes  and  bounds 
according  to  the  common  right  is  more  beneficial  to  the  wife  than 
to  be  endowed  against  common  right,  for  there  [i.  e.,  when  against 
common  right]  she  shall  hold  the  land  charged  in  respect  to  a 
charge  made  after  her  title  of  dower."  In  accord,  see  Park  on 
Dower,  242,  267;  1  Bright  H.  &  W.  387,  388;  2  Scribner,  Dower, 
704;  Jones  v.  Brewer,  1  Pick.  (Mass.)  314. 

2.  Dower  assigned  to  the  widow  according  to  common  right 
implies  a  warranty.  This  is  thus  explained  by  Park  (on  Dower, 
275):  "Every  assignment  of  dower  by  the  heir,  or  by  the  sheriff 
on  recovery  against  the  heir,  implies  a  warranty;  but  this  war- 
ranty is  special,  namely,  that  the  tenant  in  dower  being  im- 
pleaded by  one  who  has  title  paramount  shall  vouch  and  recover 
in  value  not  according  to  that  which  she  has  lost,  but  a  third 
part  of  the  two  remaining  parts  of  the  land  of  which  she  is  dow- 
able." And,  see  Co.  Litt.  384b;  1  Bright  H.  &  W.  384;  2  Scribner, 
Dower,  761;  Scott  v.  Hancock,  (13  Mass.)  162.  But  it  is  said,  for 
the  reasons  given  under  (1)  above  as  to  encumbrances,  that  this 
benefit  of  warranty  does  not  extend  to  a  case  where  the  widow 
has  consented  to  be  endowed  against  common  right.  2  Scribner, 
Dower,  764;  10  Am.  &  Eng.  Ency.  Law,  200;  Jones  v.  Brewer, 
1  Pick.  (Mass.)  314. 


§§318,319]  DOWER    AND    CURTESY.  541 

dower  in  the  husband's  land  in  England;  or  (3)  may  assign 
in  lieu  of  dower  a  rent  issuing  out  of  the  land  of  which  she  is 
dowable.  See,  further,  as  to  dower  "against  common  right," 
10  Am.  &  Eng.  Ency.  Law  174;  39  Am.  St.  Eep.  34;  Chase 
v.  Alley,  82  Me.  234  (19  Atl.  396)  ;  Skolfield  v.  Skol  field,  88 
Me.  258  (34  Atl.  27). 

§  319.  Dower  in  Kind  Impracticable. — It  has  been  seen 
(§  318)  that  dower  in  kind  may  be  impracticable  in  two 
classes  of  cases,  viz. :  (1)  By  reason  of  the  nature  of  the  hus- 
band's property,  (e.  g.,  a  mill  or  factory),  and  (2)  by  reason 
of  the  husband's  estate  in  the  property  (e.  g.,  in  co-tenancy). 
Also  the  right  and  mode  of  endowment  in  incorporeal  heredit- 
aments has  been  stated  (p.  522,  ante,  note).  It  is  now  pro- 
posed to  briefly  consider  a  few  special  cases  in  which,  for  one 
or  the  other  of  the  above  reasons,  dower  in  kind  is,  or  may 
be,  impracticable. 

1.  Doiver  in  a  Dwelling-House. — In  this  case,  though  there 
is  no  other  property  subject  to  dower,  it  may,  nevertheless,  in 
some  cases,  be  practicable  to  endow  the  widow  substantially 
in  kind,  by  assigning  her  particular  rooms,  with  the  right  to 
use  doors,  stairways,  and  passages,  as  a  means  of  access;  thus 
making  her  occupancy  and  enjoyment  equal  in  value  to  one- 
third  of  the  whole  house.  It  has  been  questioned,  however, 
whether  this  mode  of  assignment  is  according  to  common 
right  so  as  to  dispense  with  the  widow's  consent;  but  the 
better  opinion  is  that  the  widow  is  bound  to  accept  such  as- 
signment, if  practicable  and  fairly  made.1 

1  Dower  in  Dwelling-House — Widow's  Consent  to  Assignment 
of  Rooms. — In  Perkins'  Profitable  Book,  §  406,  it  is  said  of  the 
heir's  assignment  to  the  widow  of  a  chamber  in  the  capital  mes- 
suage, where  there  is  no  other  land  of  which  she  is  dowable: 
"But  it  seemeth  that  she  is  not  compellable  to  take  the  same,  be- 
cause the  messuage  is,  as  it  were,  an  entire  thing;  and  it  shall 
be  but  trouble  and  vexation  unto  a  woman  to  have  a  chamber 
within  the  house  of  another  man;  and  if  she  will  not  agree  unto 
the  same,  then  the  heir  may  assign  unto  her  a  rent  out  of  the 
same  messuage  in  the  name  of  dower."    Commenting  on  this,  in 


542  REAL    PROPERTY.  [Chap.  14 

Thus  in  Simmons  v.  Lyles,  27  Grat.  (Va.)  922,  931,  such 
an  assignment  is  approved,  and  it  is  said  by  Staples,  J.: 
"There  is  nothing  to  show  that  an  assignment  of  dower  in 
kind  is  impracticable.  We  have  no  information  on  the  sub- 
ject, except  that  the  property  consists  of  a  dwelling-house 
and  lot  in  the  town  of  Danville.  There  may  be  outhouses 
for  aught  we  know  in  which  the  dower  may  be  assigned.  The 
lot  itself  may  be  susceptible  of  division,  or,  as  is  not  unfre- 
quently  done  when  there  is  a  single  edifice,  dower  may  be  as- 
signed of  so  many  rooms." 

But  in  a  given  case  there  may  be  no  lot  attached  to  the 
dwelling-house,  and  no  outhouses  fit  for  dower;  and  the  dwell- 
ing-house may  consist  of  one  or  two  rooms  only,  incapable  of 
division  between  the  widow  and  the  heirs.1  In  this  case, 
as  impliedly  conceded  by  Judge  Staples  above,  dower  in 
kind  is  impracticable,  and  the  widow  must  be  otherwise  en- 
dowed. And  he  adds  (ubi  supra)  (after  remanding  the  case 
to  the  lower  court  for  further  inquiry  as  to  the  property)  : 
"If  an  assignment  in  kind  is  found  to  be  impracticable,  the 
court  may  decree  a  sale  of  the  whole  property,  and  a  moneyed 
compensation  to  the  appellant  in  lieu  of  dower;  or  it  may 
adopt  such  other  mode  of  adjustment  as  will  produce  the 
greatest  equality  with  the  least  inconvenience."  And  that  the 
court  may  sell  the  whole  property,  see,  also,  White  v.  White, 
16  Grat.  264  (80  Am.  Dec.  706)  ;  Wilson  v.  Branch,  77  Va. 
65  (46  Am.  Rep.  709).  But  when  it  is  thus  necessary  to 
sell  the  property,  and  to  satisfy  the  claim  of  dower  out  of  the 
proceeds,  the  court  cannot,  without  the  consent  of  all  persons 
concerned,  pay  the  widow  a  gross  sum  estimated  as  the  value 
of  her  dower,  but  must  securely  invest  one-third  of  the  pro- 

White  v.  Story,  2  Hill  (N.  Y.)  543,  548,  Bronson,  J.,  says:  "In  a 
case  like  this,  where  there  are  no  other  lands  in  which  the  dower 
may  be  assigned,  I  think  the  widow  could  not  refuse  to  take  a 
part  of  the  house.  But,  however  that  may  be,  this  woman  does 
not  complain  of  having  'a  chamber  within  the  house  of  another 
man,'  and  I  find  nothing  in  the  books  to  relieve  a  man  from  the 
'trouble  and   vexation'  which   may  follow.     *     *     *     It  is  quite 


§  319]  DOWER    AND    CURTESY.  543 

ceeds  of  the  property,  and  direct  the  interest  on  such  invest- 
ment to  be  paid  to  the  widow  during  her  life.  Blair  v.  Thomp- 
son, 11  Grat.  441;  Harrison  v.  Payne,  32  Grat.  387;  Herbert 
v.  Wren,  7  Cr.  370.     See,  also,  §  307,  ante.1 

probable  that  the  division  of  a  dwelling-house  may  be  prejudicial 
to  the  interests  of  both  parties;  but  that  cannot  be  helped  with- 
out the  aid  of  the  legislature."  And,  see  2  Scribner,  Dower,  80,  81. 
1  Dower  in  Dwelling-House  Impracticable. — In  Abingdon's 
Case,  cited  in  Howard  v.  Cardish,  Palmer,  264,  the  sheriff  re- 
turned that  he  had  endowed  a  widow  of  a  dwelling-house  by  as- 
signing to  her  in  severalty  the  third  part  of  each '  chamber,  and 
that  he  had  chalked  out  for  her  the  part  in  each.  This  was  held 
"an  ill  assignment";  and  because  (it  is  presumed)  it  was  con- 
sidered idle  and  malicious,  the  sheriff  was  committed  to  prison. 
See  2  Scribner,  Dower,  582;  White  v.  Story,  2  Hill  (N.  Y.)  543,  549. 

1  Sale  of  Property  by  a  Court  of  Chancery,  When  Dower  in 
Kind  is  Impracticable. — Such  power  of  sale,  as  is  stated  in  §  319, 
is  affirmed  in  Virginia  in  a  number  of  cases;  and  this,  independ- 
ently of  statute,  in  the  exercise  of  the  general  powers  of  a  court 
of  equity.  But  the  court  cannot  decree  a  sale  of  the  property, 
without  the  consent  of  the  widow,  merely  because  dower  in  kind 
may  prove  to  be  injurious  to  the  interests  of  the  heirs  or  cred- 
itors. The  division  itself  must  be  impracticable.  Simmons  v. 
Lyles,  27  Grat.  922,  930. 

It  is  remarkable  that  this  power  of  sale  by  a  court  of  equity 
held  in  Virginia  to  exist  when  dower  in  kind  is  impracticable  is 
nowhere  alluded  to  in  the  old  books  on  dower;  nor  does  Scribner 
recognize  it  in  his  standard  treatise.  In  3  Pomeroy's  Eq.  §§  1383- 
84,  the  advantages  of  the  equitable  jurisdiction  over  dower  are 
set  forth  at  length;  but  a  sale  because  dower  in  kind  is  impracti- 
cable is  not  among  them.  The  Virginia  cases  asserting  the  power 
have  been  doubted  in  West  Virginia.  Hoback  v.  Miller,  44  W.  Va. 
635  (29  S.  E.  1014).  It  is  true  that  in  39  Am.  St.  Rep.,  p.  35,  note, 
a  power  of  sale  in  the  absence  of  statute,  is  said  to  exist,  without 
the  consent  of  the  widow,  when  assignment  by  metes  and  bounds 
is  found  to  be  impossible;  but  the  cases  cited  do  not  sustain  the 
proposition.  It  is  believed  that,  outside  of  Virginia,  such  power 
of  sale,  under  the  general  equity  jurisdiction,  is  not  recognized; 
and  that,  in  the  absence  of  statute,  or  consent,  the  widow  must 
be  endowed  of  the  third  part  of  the  issues  and  profits,  or  of  the 
third  part  of  the  rental  value,  or  in  some  other  special  manner 


544  REAL    PROPERTY.  [Chap.  14 

2.  Dower  in  Mines. — As  to  the  right  of  dower,  the  test  is 
whether  the  mines  had  been  opened  in  the  lifetime  of  the 
husband;  and  as  to  the  mode  of  assignment,  this  is  by  metes 
and  bounds  if  practicable;  and  if  not,  by  giving  the  heir  and 

not  involving  an  absolute  sale  of  the  property.  See  the  mode  of 
assigning  dower  in  mills,  mines,  dwelling-houses,  etc.  (§§  318, 
319),  in  which,  out  of  Virginia,  there  is  no  suggestion  of  a  sale. 
See,  also,  2  Scribner,  Dower,  639;  10  Am.  &  Eng.  Ency.  Law, 
176,   179. 

It  is  assumed,  of  course,  in  what  has  been  said,  that  the  sale  is 
decreed  for  no  other  reason  than  that  dower  in  kind  is  impracti- 
cable. It  has  no  application  to  a  sale  to  satisfy  encumbrances 
paramount  to  dower,  when  the  widow  is  dowable  of  the  surplus 
only  (§  299,  supra).  But  if  the  encumbrance  is  subordinate  to 
dower,  it  is  error  to  decree  a  sale  without  first  assigning  dower 
in  kind,  unless,  of  course,  the  widow  consents  to  receive  a  com- 
mutation in  money.  2  Scribner,  Dower,  653;  Williams'  Case,  3 
Bland  Ch.  186,  264;  Simmons  v.  Lyles,  27  Gratt.  922;  Fisher  v. 
Clements,  82  Va.  813  (1  S.  E.  182);  Laidley  v.  Kline,  8  W.  Va. 
218;  Eilbreth  v.  Roots,  33  W.  Va.  600  (11  S.  E.  21);  Jarrell  v. 
French,  43  W.  Va.  456,  27  S.  E.  263). 

In  two  cases  in  West  Virginia,  an  effort  has  been  made  by  the 
widow  to  obtain  a  decree  for  the  sale  of  the  whole  property,  and 
the  assignment  of  her  dower  out  of  the  proceeds,  which,  as  we 
have  seen,  she  cannot  do  by  bringing  suit  for  partition.  In  the 
first  case,  Hull  v.  Hull,  26  W.  Va.  1  (S.  C.  35  W.  Va.  155,  29  Am. 
St.  Rep.  800),  the  widow  filed  a  bill,  in  the  nature  of  a  creditors' 
bill,  for  this  purpose;  but  it  was  held  that  a  widow  has  no  right 
to  bring  a  suit  in  chancery  to  have  all  the  lands  of  her  husband 
sold,  and  out  of  the  proceeds  of  such  sale  to  have  the  value  of 
her  dower  paid,  and  the  residue  paid  to  the  creditors  of  her  hus- 
band (their  claims  being  subordinate  to  dower),  and  if  any  sur- 
plus remains  to  have  it  divided  among  her  husband's  heirs.  She 
had  no  right,  the  court  said,  to  file  a  creditors'  bill;  and  if  she 
had,  such  sale  would  not  be  valid  without  the  consent  of  the 
heirs,  all  being  adult,  and,  perhaps,  not  even  then. 

In  the  second  case,  Hol)ack  v.  Miller,  44  W.  Va.  635  (29  S.  E. 
1014),  the  widow  filed  her  bill  solely  under  her  right  to  dower, 
making  the  infant  heir  defendant;  and,  alleging  that  the  land 
was  not  susceptible  of  allotment  of  dower  in  kind  without  detri- 
ment to  the  property,  she  prayed  that  it  be  sold,  and  she  be  given 
a  gross  sum  in  lieu  of  dower  in  kind.    The  court  below  decreed 


§319]  DOWER    AND    CURTESY.  545 

widow  alternate  occupancy  of  the  whole  mine,  for  short 
periods  proportioned  to  their  interests,  or  by  giving  the 
widow  one-third  of  the  profits.  And  the  same  rule  has  been 
held  applicable  to  quarries.  Stoughton  v.  Leigh,  1  Taunt. 
402;  Crouch  v.  Puryear,  1  Band.  (Va.)  258;  Coates  v.  Chee- 
ver,  1  Cowen  (N.  Y.)  460;  Billings  v.  Taylor,  10  Pick. 
(Mass.)  460  (20  Am.  Dec.  533)  ;  Hendrix  v.  McBeth,  61 
Ind.  473  (28  Am.  Eep.  680);  2  Seribner,  Dower,  591;  10 
Am.  &  Eng.  Ency.  Law,  158.1 

the  sale;  but  on  appeal  this  was  reversed,  and  the  decree  was 
pronounced  not  merely  erroneous,  but  void.  The  court  doubted 
the  Virginia  doctrine  (§  319),  that  in  a  suit  by  the  heir  the  land 
may  be  sold,  without  the  consent  of  the  widow,  if  dower  in  kind 
be  impracticable;  and  decided  emphatically,  that  a  widow  "has 
no  sort  of  right  to  sue  and  sell  forever  from  the  heir  the  fee- 
simple  that  she  may  get  satisfaction  for  her  small  estate  out  of 
the  proceeds,"  and  that  this  was,  a  fortiori,  true  when  the  heir  is 
an  infant.  The  court  said:  "A  widow  entitled  to  dower  is  en- 
titled by  the  common  law  to  a  part  of  the  realty  itself,  to  be  set 
out  by  metes  and  bounds,  or  a  particular  room  in  a  house;  or, 
if  insusceptible  of  such  assignment,  then  the  third  toll-dish  in 
a  mill,  or  occupancy  for  a  third  of  the  time,  or  a  third  of  the  rent. 
2  Min.  Inst.  159;  2  Scrib.  Dower,  p.  80,  §  16." 

1  Dower  in  Mines. — It  is  held  in  Lenfers  v.  Henke,  73  111.  405 
(24  Am.  Rep.  263),  by  way  of  extension  of  the  rule  laid  down  in 
the  text  above,  that,  although  it  was  not  known  in  the  lifetime 
of  the  husband  that  any  mines  existed  in  the  land,  and  they  were 
opened  for  the  first  time  by  the  heir,  but  before  assigning  the 
widow  dower,  that  she  was  dowable  therein;  and  that  it  would 
not  be  waste  for  her  to  continue  the  mining  which  the  heir  had 
begun.  And,  see  this  approved  in  Priddy  v.  Griffith,  150  111.  560 
(37  N.  E.  999;  41  Am.  St.  Rep.  397).  A  similar  decision  was  made 
in  Seager  v.  McCabe,  92  Mich.  186  (52  N.  W.  299;  16  L.  R.  A. 
247),  under  a  statute  which  gave  to  the  widow  "the  use  during 
her  natural  life  of  one-third  of  all  the  lands  whereof  her  husband 
was  seised  of  an  estate  of  inheritance  at  any  time  during  the 
marriage,"  the  court  attaching  some  importance  to  the  language 
of  the  statute.  But,  from  the  reasoning  of  the  court,  it  is  prob- 
able that  the  decision  would  have  been  the  same  without  the  stat- 
ute;  and  that  in  Michigan  a  widow  would  be  held  dowable  of 


546  REAL   PROPERTY.  [Chap.  14 

3.  Dower  in  Partnership  Real  Estate. — It  is  the  general 
doctrine  in  the  United  States  that  real  estate  bought  with 
partnership  funds  and  for  partnership  purposes,  is  impressed 
in  equity  with  the  character  of  personalty;  but  this  is  sub 
modo  only,  and  not  out  and  out  for  all  purposes.  That  is  to 
say,  such  partnership  realty  is  in  equity  considered  personalty 
so  far  as  it  may  be  needed  to  pay  the  partnership  debts,  and 
to  adjust  the  accounts  of  the  partners  inter  se;  but  the  surplus 
remaining  after  this  is  done  is  considered  realty,  and  de- 
volves on  the  heir,  and  is  subject  to  the  widow's  dower.  See 
1  Scribner,  Dower,  163;  2  Id.  575;  10  Am.  &  Eng.  Ency. 
Law,  159;  3  Pom.  Eq.  §  1166,  note;  27  L.  E.  A.  340,  note; 
Martin  v.  Smith,  25  W.  Va.  579. 

When  by  the  above  doctrine  the  widow  is  entitled  to  dower 
in  the  surplus,  it  is  manifest  that  her  claim  must  be  suspended 
until  the  payment  of  partnership  debts,  and  the  adjustment 
would  usually  involve  the  sale  of  the  partnership  realty,  she 
would  not  be  entitled  to  receive  her  dower  in  kind,  but  one- 
third  of  the  surplus  would  be  invested,  and  the  interest  there- 
on paid  the  widow  during  her  life.  2  Scribner,  Dower,  163, 
648,  695. 

The  rule  in  England,  contrary  to  that  in  the  United  States 

mines  which  at  the  time  of  assignment  had  never  been  opened 
at  all. 

In  Macaulay  v.  Dismal  Swamp  Land  Co.,  2  Rob.  (Va.)  507,  a 
husband  died  seised  of  land  incapable  of  cultivation,  and  not 
otherwise  productive  or  valuable  than  by  cutting  the  timber,  and 
making  sale  thereof  when  converted  into  shingles.  This  had  been 
done  before  the  husband's  death.  The  court  followed  the  doctrine 
of  Stoughton  v.  Leigh,  1  Taunton,  202,  as  applicable  by  analogy, 
and  gave  the  widow  dower,  and  said:  "It  is  in  truth  a  mine  upon 
the  surface,  not  of  minerals  incapable  of  renewal,  but  of  vege- 
table matter,  in  a  constant  course  of  spontaneous  reproduction." 
But  suppose  the  husband  had  not  "worked  the  timber"  in  his  life- 
time, but  the  widow  was  enterprising  enough  to  desire  to  support 
herself  in  this  way.  Why  should  she  not  be  allowed  to  do  so,  es- 
pecially in  view  of  the  modified  doctrine  in  the  United  States  as 
to  waste.    See  16  L.  R.  A.  247,  note. 


§§319,320]  DOWER    AND    CURTESY.  547 

generally,  is  that  partnership  realty  is  converted  into  per- 
sonalty, not  sub  modo  only,  but  out-and-out,  and  for  all  pur- 
poses. As  under  this  rule  the  surplus  is  peTsonalty,  and  goes 
to  the  personal  representatives,  the  widow  is  not  entitled  to 
dower  therein.  The  English  rule  has  been  followed  in  Vir- 
ginia, and  dower  denied  in  the  surplus.  See  Pierce  v.  Trigg, 
10  Leigh,  406;  Wheatletj  v.  Calhoun,  12  Leigh,  264  (37  Am. 
Dec.  654) ;  Parrish  v.  Parrish,  88  Va.  529  (14  S.  E.  325)  ; 
Deering  v.  Eerfoot,  89  Va.  491  (16  S.  E.  671).  But  see 
language  of  Moncure,  J.,  in  Davis  v.  Christian,  15  Grat.  11, 
35,  commented  on  in  4  Va.  Law  Eeg.  310;  and  Hancock  v. 
T alley  (Va.  Special  Court  of  Appeals,  1881) ;  reported  in 
7  Va.  Law  Eeg.  24,  with  note. 

§  320.  Dower  When  the  Husband  Dies  Seised  of  Several 
Tracts  of  Land,  Which  Descend  to  the  Heir. — In  this  case  the 
question  arises  (supposing  that  all  of  three  tracts  are  of  equal 
value),  whether  the  heir  can  compel  the  widow  to  accept  as 
her  dower,  or  the  widow  demand  that  the  heir  assign  her-,  the 
whole  of  one  of  the  tracts,  instead  of  one-third  of  each  of  the 
tracts.  On  this  point,  the  weight  of  authority  at  common  law 
is  that  the  assignment  of  one  whole  tract  is  against  common 
right,  and  is  not  good  unless  both  heir  and  widow  agree 
thereto;  and  that,  by  common  right,  the  widow  is  entitled  to 
have  set  off  to  her,  per  metas  et  bundas,  the  third  part  of  each 
tract  in  severalty.  Park  on  Dower,  255,  257;  2  Scribner, 
Dower,  587 ;  2  Am.  &  Eng.  Ency.  Law,  183 ;  Scott  v.  Scott,  1 
Bay  (S.  S.  504  (1  Am.  Dec.  625) ;  Jones  v.  Brewer,  1  Pick. 
(Mass.  314) ;  Schnebly  v.  Schnebly,  26  111.  116;  Wood  v.  Lee, 
5  T.  B.  Mom  (Ky.)  50;  Skolfield  v.  STcolfield,  88  Me.  258 
(34  Atl.  27)  ;  Compton  v.  Pruitts,  88  Ind.  171. 

The  above  rule,  however,  though  correct  on  a  strict  con- 
struction of  the  word  "practicable,"  as  the  test  of  dower  ac- 
cording to  common  right,  may  cause  serious  inconvenience 
in  some  cases;  and  it  has  not  met  with  the  approval  of  all 


548  REAL    PROPERTY.  [Chap.  14 

the  text-writers,  as  is  shown  in  the  note  below.1  It  has  also 
been  denied  in  some  of  the  cases,  so  far  as  applied  to  lands 
which  descend  to  the  heir.    See  Milton  v.  Milton,  14  Pla. 

1  Dower  in  Whole  of  One  Tract  Instead  of  in  Part  of  Sev- 
eral.— It  has  been  seen  in  §  318,  ante,  that  this  case  is  put  by 
Park  as  against  common  right,  and  requiring  the  widow's  accept- 
ance. But  in  Roper,  Husband  and  Wife,  394,  it  appears  from  the 
text  that  there  has  been  some  difference  of  opinion  on  this  point; 
and  the  editor,  Mr.  Jacob,  expresses  the  opinion  that  "perhaps 
the  authorities  in  favor  of  this  mode  of  assigning  dower  [i.  e., 
in  one  tract  for  all]  would  now  prevail,  if  the  manor  assigned 
were  equal  in  value  to  one-third  of  the  whole.  It  does  not  seem 
necessary  in  all  cases  that  the  widow  should  have  a  third  of 
each  of  the  husband's  estates." 

In  1  Bright,  Husband  and  Wife,  384,  this  case  is  put  to  exem- 
plify the  implied  warranty  in  favor  of  a  widow  who  has  been 
evicted  of  her  dower  by  title  paramount:  "If  a  husband  be  law- 
fully seised  of  two  acres,  and  of  a  third  by  his  disseisin  before 
his  marriage,  and  dies,  and  the  widow  be  endowed  of  the  acre 
which  he  held  by  disseisin,  and  then  the  disseisee  recovers  from 
her  that  acre,  she  will  be  entitled  to  be  endowed  de  novo  of  the 
third  part  of  the  two  remaining  acres,"  etc.  And,  yet  it  is  well 
settled  (see  p.  523,  note)  that  such  warranty  only  applies  when 
the  endowment  was  according  to  common  right,  which  would  in- 
dicate that  Bright  so  regards  the  endowment  in  this  case. 

As  to  the  mode  of  assignment  in  the  case  under  consideration, 
it  is  said  in  2  Tuck.  Com.  65:  "Thus  if  there  be  three  houses,  it 
would  not  be  right  to  divide  each,  and  give  the  widow  one-third 
in  each,  for  that  would  be  to  embarrass  the  use  of  all  three  to  all 
entitled;  but  some  recompence  is  to  be  made  [i.  e.,  when  one 
house  is  assigned  the  widow],  either  by  a  sum  of  money  or  rent, 
for  owelty  of  partition,  so  as  to  equalize  the  value  [i.  e.,  when  the 
houses  are  of  unequal  value].  With  us  [in  Virginia]  the  same 
course  is  usually  pursued  as  to  several  tracts  of  land;  and  indeed 
the  whole  business  of  assigning  dower  and  making  partition  is 
governed  by  the  great  principle  of  so  adjusting  the  several  claims 
as  to  produce  the  greatest  equality  with  the  least  inconvenience." 
And  Professor  Minor  (2  Min.  Ins.  103),  after  laying  down  the 
law  of  England,  that  "the  sheriff  must  assign  not  only  one-third 
of  each  tract,  but  a  third  of  each  species  of  land,  arable,  meadow, 
pasture,  wood,  etc.  [sed  quaere  as  to  "each  species"  by  the  modern 
law.    2   Scribner,   Dower,   587],   declares  that  in  Virginia  "one- 


§320]  DOWER    AND    CURTESY.  549 

369;  Anderson  v.  Henderson,  5  W.  Va.  182;  Cazier  v. 
Hinchey,  143  Mo.  203  (44  S.  W.  1052).  And  in  a  number 
of  the  States  it  has  been  changed  by  statute.  See  2  Scribner, 
Dower,  589;  10  Am.  &  Eng.  Ency.  Law,  184;  Montgomery 
v.  Horn,  46  la.  285 ;  Rowand  v.  Carroll,  81  111.  224 ;  Rich- 
mond v.  Harris,  19  Ky.  Law,  1443  (43  S.  W.  703).  But  as 
to  alienees  of  different  tracts  of  land,  sold  by  the  husband 
without  the  wife's  concurrence,  it  is  universally  held  that 
dower  in  kind  must  be  assigned  the  widow  out  of  each  separate 
tract,  and  the  burden  cannot  be  thrown  on  one  alienee  to  the 
exoneration  of  the  other  or  others.  And  the  same  rule  has 
been  retained  as  applicable  to  devisees  of  the  husband,  even 
where  as  to  the  heirs  the  strict  rule  of  the  common  law  has 
been  changed  by  statute  or  judicial  decisions.  Thus  the 
Kentucky  statute,  changing  the  law  as  formerly  held  in  that 
State  as  to  heirs,  enacts :  "Where  the  lands  are  not  held  by 
several  devisees  or  purchasers,  it  shall  not  be  necessary  to 
assign  dower  out  of  each  separate  portion,  but  an  equitable 

third  in  value  is  to  be  assigned,  in  such  manner  as  shall  best 
subserve  the  mutual  convenience  of  the  parties."  But  no  deci- 
sion on  this  point  has  been  found  in  Virginia. 

The  inconvenience  of  giving  the  widow  one-third  of  each  tract 
(which  might  well  cause  such  endowment  to  be  deemed  impracti- 
cable, at  least  by  a  court  of  equity)  is  well  put  by  Day,  C.  J.,  in 
Montgomery  v.  Horn,  46  Iowa,  285,  286:  "It  is  conceded  that  the 
deceased  owned  fifteen  separate  tracts  of  land.  Suppose  these 
separate  parcels,  to  consist  of  forty-acre  tracts,  of  equal  value. 
Then,  instead  of  being  permitted  to  take  five  of  these  forties, 
the  widow  must  take  thirteen  and  one-third  acres  out  of  each 
of  the  fifteen.  It  is  apparent  that  this  would  very  much  depre- 
ciate the  value  of  the  whole  property,  and  that  the  division  could 
ordinarily  be  effected  only  by  selling  the  whole." 

It  may  be  added  that  the  simple  case  of  "three  tracts  of  equal 
value"  would  seldom  occur  in  practice;  and  that  resort  should  be 
had  to  a  court  of  equity,  so  as  to  equalize  the  value  "either  by  a 
sum  of  money  or  rent,  for  owelty  of  partition,"  as  Judge  Tucker 
suggests  in  the  quotation  above.  See  as  to  "owelty,"  p.  182,  ante, 
note;  Clarendon  v.  Hornby,  1  P.  Wins.  446;  Hyhart  v.  Jones,  130 
N.  C.  227  (41  S.  E.  292) ;  21  Am.  &  Eng.  Ency.  Law,  1179. 


550  REAL    PROPERTY.  [Chap.  14 

allotment  may  be  made  in  one  or  more  parcels  in  lieu  of  the 
whole.  See  Richmond  v.  Harris,  19  Ky.  Law,  1443  (43  S. 
W.  703).  Also,  2  Scribner,  Dower,  589;  10  Am.  &  Eng. 
Ency.  Law,  184,  and  note;  Coalter  v.  Holland,  2  Harring. 
(Del.)  330;  Droste  v.  Hall  (N.  J.  Eq.)  29  Atl.  437). 

Another  question  as  to  dower  according  to  common  right 
arises  when  the  husband  has  conveyed,  without  the  wife's 
concurrence,  land  to  an  alienee  during  the  coverture,  but  dies 
seised  of  land  sufficient  to  satisfy  the  widow's  dower  right  in 
both  the  land  sold  and  the  land  retained.  In  this  case  it  is 
held,  without  the  aid  of  statute,  that  to  avoid  the  necessity  of 
a  suit  by  the  alienee  against  the  heir  upon  the  husband's  war- 
ranty, dower  shall  be  assigned  the  widow  entirely  out  of  the 
lands  of  which  her  husband  died  seised.  This  at  least  is  the 
rule  in  equity.  See  2  Scribner,  Dower,  637;  10  Am.  &  Eng. 
Ency.  Law,  183;  Wood  v.  Keys,  6  Paige  (N.  Y.)  478;  Law- 
son  v.  Morton,  6  Dana  (Ky.)  471;  Richmond  v.  Harris,  19 
Ky.  Law,  1443  (43  S.  W.  703)  ;  Stimson  v.  Thorn,  25  Grat. 
278. 


GENERAL  INDEX 


[References  are  to  Sections.] 

A 

ABEYANCE, 

doctrine  as  to  fee  simple,  180. 

ACCOUNT, 

as  between  cotenants,  159. 
ACTIONS, 

for  breach  of  covenant,  133. 

ADMINISTRATOR, 

See  Executors  and  Administrators. 

takes  emblements,  11. 
takes  lease,  10. 

ADVANCEMENT, 
denned,  166. 

evidence  that  gift  is,  167. 
person  advanced  may  elect  to  come  in  or  remain  out  of 

hotchpot,  172. 
to  whom  and  by  whom  made,  168. 
value  fixed  at  date  of  gift,  171. 
what  property  may  be  given,  169. 

ADVERSE   POSSESSION, 

begun  in  privity  with  owner,  139n. 

conflicting  deeds  or  patents,  141. 

defined,  136,  139. 

disabilities  of  coverture,  infancy  and  insanity,  142. 

effect  of  statute,  138. 

holding   through    mistake   as   to   true    location    of   bound- 
ary, 139n. 

holding    with    and    without    claim    of    color    of    title    dis- 
tinguished, 140. 

owner  out  of  possession  may  grant  interest,  123. 

requisites  for,  138  n. 

551 


552  GENERAL    INDEX. 

[References  are  to  Sections.] 

ADVERSE  POSSESSION— Continued. 
subtraction  of  war  period,  144. 
tacking  disabilities  not  allowed,  143. 
Virginia  statute,  137. 

AIDER   IN   EQUITY, 

defective  execution  of  a  power,  240. 

AIDS, 

payment  for  ransom,  2. 

ALIENATION, 

conditions   in   restraint,   270. 

forfeiture,  270. 

restraint  without  condition  or  conditional  limitation,  271. 

ANCESTOR, 

defined,  70. 

heir  not  in  esse  at  death,  77. 

APPOINTMENTS, 

See  Powers. 

illusory,  defined,  238n. 
over  property,  235,  236,  237. 

ATTORNEY    IN   FACT, 

power  to  make  deeeds,  122. 


BARGAIN  AND  SALE, 
defined,  115. 

BASE  OR  QUALIFIED  FEE, 
examples,  37. 

BASTARDS, 

common  law  and  Virginia  statute  distinguished,  76-77n. 

BEQUESTS, 

considered  future  estate  in  personalty,  233. 
to  unformed  corporations,  214. 

BUILDING  RESTRICTIONS, 

construction  of  deeds,  262. 


GENERAL    INDEX.  553 

{References  are  to  Sections.] 

C 

CHILDREN, 

limitations  to  surviving  children,  204. 
interpretation  of  word,  200,  202. 
"surviving  children,"   203. 

CLASSIFICATION, 
fixtures,  16. 
leases,  52. 

CLASSES   OF   PROPERTY, 

ancient  names  of  property,  1. 

terms  "real"  and   "personal"   modern,   1. 

CODICIL, 

effect  on  will,  86. 
revocation,  91. 

COLLATERALS, 

half  blood,  75. 

COLLATERAL   LIMITATION, 

See  Limitation. 

COLOR  OF  TITLE, 
defined,  140. 

COMMON, 

right,  5. 

COMMON  RECOVERY, 
defined,  39n. 

CONDITIONAL   LIMITATIONS, 

See  Limitations. 

CONDITIONS, 

attached  to  fee  simple  when  void,  270. 

building  restrictions,  262. 

conditional  limitation  on  alienation  of  estate,  270. 

continuous  and  non-continuous,  effect  of  waiver  of  breach, 

283n. 
construed  as  subsequent,  251n. 
in  lease,  not  to  assign  without  license,  285n. 

36 


554  GENERAL    INDEX. 

[References  are  to  Sections.] 

CONDITIONS — Continued. 
in  terrorem,  effect  of  limitations  over  as  negativing  con- 
dition, 268n. 
legacies  dependent  on,  250n. 
limitation  on  alienation  attached,  270. 
limitation  on  alienation  attached  to  life  estate,  270. 
limitation   on   alienation   attached   to  estate   in   fee-tail   is 

good,   270. 
marriage   as   limitation   or   condition   subsequent,   254. 
not  personally  binding  on  grantee,  279n. 
not   subsequent  when   conveyance   of   land   for   particular 

purpose,  259. 
precedent  distinguished  from  subsequent,  38. 
precedent  made  impossible  by  act  of  God,  265. 
precedent,    performance    of   made   impossible    by    grantor, 

265n. 
precedent  and  subsequent,  defined,  249. 
precedent  and  subsequent,  distinguished,  250. 
precedent   or   subsequent,  which   favored   in   law,   251. 
precedent,  relief  in  equity  against,  282n. 
rescission  of  support  deeds,  281n. 
remainders  dependent  on,  250n. 
restraint  of  alienations,  270. 
restraint  of  marriage,  268. 

restraint  on  alienation  without  conditional  limitation,  271. 
rule  against  perpetuities  applied,  275n. 
subsequent,  breach  of,  possibility  of  reverter  alienable,  276. 
subsequent,  breach  of,  when  relief  in  equity,  282. 
subsequent,  distinguished  from  a  covenant,  257. 
subsequent,  distinguished   from  limitation,   253. 
subsequent  distinguished  from  trust,  258. 
subsequent,  Dumpor's  Case,  284. 
subsequent,  equity  will  not  enforce  forfeiture  for  breach, 

281. 
subsequent,  how  created,  272. 
subsequent,  injunction  in  equity,  280. 
subsequent,  mode  of  enforcement  of  forfeiture  for  breach, 

277. 
subsequent,  no  damages  at  law  for  breach,  278. 
subsequent,  no  specific  performance  in  equity,  279. 
subsequent,  time  of  performance,  274n. 
subsequent,  waiver  of  forfeiture  for  breach,  283. 
subsequent,  who  may  enforce  forfeiture  for  breach,  275. 


GENERAL    INDEX.  555 

[References  are  to  Sections.] 

CONDITIONS— Continued. 

subsequent,  who    liable    to    forfeit    for    its    breach,    273. 

subsequent,  who  may  perform,  274. 

subsequent,  words  proper  for,  252. 

summary  of  effect  of  conditions,  in  restraint  of  mar- 
riage, 269. 

void  because  impossible,  265. 

void  because  repugnant  or  uncertain,  267. 

void  because  unlawful,  266. 

void,  precedent  or  subsequent,  264. 

CONFLICTING  DEEDS  OR  PATENTS, 
adverse  possession  doctrine,  141. 

CONSANGUINITY, 

at  common  law,  70. 
children  by  adoption,  70n. 

CONTRACT, 

to  make  will,  81n. 

CONVEYANCES, 

at  common  law,  112. 

conflicting  deeds  or  patents,  141. 

consideration  deed  of  bargain  and  sale,  118n. 

construction  of  deeds,  120. 

construction  of  prohibiting  the  sale,  etc.,  of  intoxicating 
liquors,  263. 

construction  of,  providing  for  support  of  grantor  or  an- 
other by  grantee,  261. 

covenants  of  title,  see  Covenants. 

covenant  to  stand  seized,  bargain  and  sale  and  lease  and 
release,  115. 

deed  by  grantor  out  of  possession  with  adverse  possession 
against  him,  123. 

deed  of  poll  and  indenture  defined,  121. 

deeds  made  by  attorney  in  fact,  122. 

deed  necessary  for  term  of  more  than  five  years,  117. 

expression  as  to  use,  not  condition  subsequent,  259. 

form  of  deed  of  grant,  119. 


556  GENERAL    INDEX. 

[References  are  to  Sections.] 

CONVEYANCES — Continued. 
in  fee  by  tenant  in  dower,  126. 
map  referred  to  in  deed,  120. 
modern  covenants  of  title,  130. 
of  land,  paramount  to  survivorship,  150  (2). 
power  to  fill  in  blanks,  119n. 
quitclaim  deed,  132n. 
requisites  for  a  deed,  117n. 
statutory  deed  of  grant,  117. 
tortious,  43. 

trust,  when  for  particular  purpose,  260. 
under  statute  of  uses,  113. 

ut  res  magis  voleat  quam  pereat  as  applied  to  deeds,  118. 
warranty    (see  warranty), 
what  covenants  purchaser  entitled  to,  132. 

COPARCENERS, 

accounting  between,  159n. 
distinguished  and  defined,  156. 

CORPORATION, 

as  executor  and  administrator,  96n. 
bequest  to  unformed,  good,  214. 

CORPOREAL    TENEMENTS, 

See  Tenements. 
COTENANTS, 

See  Joint  Tenants;   Tenants  by  Entireties;   Tenants  in  Com- 
mon; Coparceners;   Advancements. 

account  as  between,  159. 
partition,  162. 
privity  between,  156n. 

receiving  more  than  comes  to  his  just  share  and  propor- 
tion, 160. 
trespass  as  between,  157. 
waste  as  between,  158. 

COVENANTS, 

See  Leases. 

actions  for  breach,  133. 

classified,  130. 

conditions  subsequent  distinguished  from,  257. 


GENERAL    INDEX.  557 

[References  are  to  Sections.] 

COVENANTS— Continued. 
defined,  257n. 

express  covenants  of  title,  131. 
express  defined,  131. 
measure  of  damages  for  breach,  135. 
purchaser  entitled  to  general  warranty,  132. 
running  with  the  land,  64,  134. 
to  stand  seized,  115. 
what  constitutes  breach,  132. 
words  implying  quiet  possession,  130. 

COVERTURE, 

adverse  possession,  142. 

CREDITORS, 

competent  witnesses  to  wills,  85. 

CROPS, 

what  estate,  11. 

CROSS  REMAINDERS, 

See  Remainders. 

CURTESY, 

See    "Dower   and    Curtesy"    and    "Dower." 

actual  seisin  required  at  common  law,  290n. 

defined,  287. 

summary  of  requisites,  287n. 

valid  marriage  essential,  287n. 

CY  PRES  DOCTRINE, 

as  to  contingent  remainders,  188. 

D 

DAMAGES, 

see  covenants,  135. 

DE  DONIS  CONDITIONALIBUS, 
created  estate  tail,  38 
explained,  38. 


558  GENERAL    INDEX. 

[References  are  to  Sections.] 

DEEDS, 

See  Conveyances. 

building  restrictions,  262. 

conflicting  title  or  grants,  141. 

construction  of  support  deeds,  261n. 

fee  simple  title  passes  without  word  heirs,  36. 

old  and  modern  rule  limitation,  41. 

quitclaim,  132n. 

rescission  of  support,  281n. 

remainders  in,  by  way  of  use,  213. 

title  by  deed  requires  assent  of  grantee,  70. 

DEED  OF  GRANT, 

See  Conveyances. 

DEFINITIONS, 

advancement,  166. 

adverse  possession,  136,  139. 

ancestor,  70. 

bargain  and  sale,  115. 

base  or  qualified  fee,  37. 

color  of  title,  140. 

common  recovery,  39n. 

conditions  precedent  and  subsequent,  38,  249. 

contingent  remainders,  175n. 

coparceners,  156. 

covenant,  257n. 

covenants  of  title,  130,  131. 

curtesy,  287. 

deed  of  poll  and  indenture,  121. 

definite  and  indefinite  failure  of  issue,  221. 

dower,  286. 

emblements,  11. 

estate  at  will,  67. 

estate  by  sufferance,  68. 

estate  for  years,  49. 

executor  and  administrator,  95. 

executor  de  son  tort,  97. 

executory  devise,  206. 

executory  use,  206. 

fee  simple  conditional,  38. 

fee  simple  estate,  34. 


GENERAL    INDEX.  559 

[References  are  to  Sections.] 

DEFINITIONS— Continued. 
fee  tail,  39. 
fixtures,  15. 
freehold  estates,  9. 
hereditaments,  6. 
hotchpot,  165. 
joint  tenants,  145. 
lands,  3. 
lease,  50. 

lease  and  release,  115. 
legacies,  111. 
livery  of  seisin,  10. 
nuncupative  wills,  83. 
olographic  wills,   83. 
per  stirpes  and  per  capita,  72. 
power  of  appointment  over  property,  235. 
remainders,  174. 
right  of  reverter,  38. 
statute  of  uses,  114. 
tenants  by  entireties,  151. 
tortious  conveyances,  43. 
trade  fixtures,  27n. 
vested  remainders,  175n. 
warranty,  124. 
waste,  46. 

widow's   quarantine,    313. 
words  of  limitation  and  purchase,  192. 

DESCENT, 

collaterals  of  half  blood,  75. 

common   law   and   Virginia  statute   distinguished,   71. 

executor  and  administrator  take  personal  property  only,  95. 

from  infant,  74. 

heir  at  law  cannot  be  disinherited  unless  estate  actually 

devised  to  another,  70. 
heir  cannot  disclaim  title,  70. 
heir  not  in  esse  at  ancestor's  death,  77. 
heir  takes  as  devisee  and  not  by  descent  when  quantity 

same,   70. 
inheritance  by  bastard,  76. 
murderer  of  ancestor  takes  legal  title,  70n. 
per  stirpes  and  per  capita,  72. 
statutes  of  various  states  distinguished,   78. 


560  GENERAL    INDEX. 

[References  are  to  Sections.] 

DESCENT— Continued. 

title  by,  distinguished  from  title  by  devise  or  deed,  70. 
Virginia  statute,  71,  72. 

DETAINER, 

See  Ejectment. 

DEVISEE, 

must  prove  will,  70. 

DEVISES, 

See  Wills,  Executors  and  Administrators,  Executory  Devises. 
English  and  Virginia  statute  distinguished,  80. 
lapsed,  see  wills, 
power  of  disposition  over  property  on  estate  of  devisee — 

validity  of  limitation  over,  242. 
to  A  and  the  heirs  of  his  body;  and  if  A  die  without  issue 

living  at  his  death,  then  to  B  and  his  heirs,  231. 
to  A  and  the  heirs  of  his  body;  and  if  A  die  without  issue 

then  to  B  and  his  heirs,  230. 
to  A  and  his  heirs  and  if  A  dies  without  issue  remainder 

to  B  and  his  heirs,  Virginia  rule,  229. 
to  A  for  life,  and  if  A  die  without  issue,  remainder  to  B 

and  his  heirs,  Virginia  rule,  227. 

DISABILITIES, 

tacking  not  allowed,  143. 

DISCHARGE, 

condition   subsequent,   Dumpor's   Case,   284. 

DISCLAIMER, 

deed  must  be  accepted  by  grantee,  70n. 

DISTRESS, 

common  law   distinguished   from   Virginia   rule,   56. 

DISTRIBUTION, 

Virginia  statute,  79. 

DOWER, 

See  Widow's  Quarantine. 

according  to  common  right,  318. 

assigned  by  summary  proceeding  in  court  on  motion,  317. 

assigned  in  pais  by  tenant  of  freehold,  317. 


GENERAL    INDEX.  561 

[References  are  to  Sections.] 

DOWER— Continued. 

assignment,  in  partition  suit,  316n. 

assignment  of,  procedure — Virginia,  317. 

cases  where  no  dower  on  ending  of  husband's  inheri- 
tance, 312. 

encumbrance  created  after  marriage  paramount  to  dower 
in  Virginia,  299n. 

defined,  286. 

denied  in  trusts,  292n. 

equitable  estates  in  United  States,  293. 

equitable  estates  in  Virginia,  294. 

equity  of  redemption  mortgaged  land,  301. 

equity  of  redemption  in  United  States,  303. 

equity  of  redemption   in  Virginia,   304. 

equity  of  redemption  when  mortgage  foreclosed  in  hus- 
band's lifetime,  302. 

exoneration,  in  mortgaged  land  out  of  husband's  other 
land,  306. 

exoneration  in  mortgaged  land  out  of  husband's  per- 
sonalty, 305. 

husband's  estate  of  inheritance  terminates  in  his  life- 
time  or   at   his   death,   310. 

husband  has  reversion  on  which  rent  reserved,  297. 

husband  joint  tenant  or  tenant  by  entireties,  291. 

husband  rescinding  contract  of  purchase,  293n. 

in  encumbered  land,  299. 

in  equitable  estates,  292. 

in  kind,  319. 

insane  wife,  contingent  right  of  dower  extinguished,  308n. 

origin  of,  288n. 

out  of  dower,  298. 

ownership  cf  husband  must  be  beneficial,  295. 

present  value   of  wife's   contingent  right,   308. 

present  value  widow's  vested  right  of  dower,  307. 

proportion  of  principal  of  mortgage  debt  widow  liable  for 
as  between  herself  and  heirs,  309. 

purchase  money  mortgage,  300. 

reversions  and  remainders,  296,  297n. 

summary  of  requisite,  287n. 

unassigned,  inalienable  by  widow,  316. 

unassigned,  not  liable  at  law  for  widow's  debts,  316. 

unassigned,  no  right  of  entry,  316. 


I 


562  GENERAL    INDEX. 

[References  are  to  Sections.'] 

DOWER — Continued. 

valid  marriage  essential,  287n. 

when  husband  dies  seised  of  several  tracts  of  land,  which 

descend  to  the  heirs,  320. 
widow's  quarantine,  313. 

widow    receives   dower   although   husband's   estate    of    in- 
heritance has  come  to  end,  311. 
widow's  unassigned,   316. 

DOWER  AND   CURTESY, 

See  "Dower"'   and   "Curtesy." 

distinguished,  289. 

origin  of,  288. 

seisin   in   fact,   seisin   in    law,   and   a   right   to   action   or 

entry,  290. 
shifting  fees,  311n. 

DUMPOR'S  CASE, 

doctrine  as  to  discharge  of  condition  subsequent,   284. 


E 


EJECTMENT, 

for  non-payment  of  rent,  59. 

rents,  61. 

tenant  by  sufferance,  68. 

EMBLEMENTS, 
denned,  11. 

pass  to  administrator,  11. 
tenant  at  will,  69. 
when  estate  less  than  freehold,  69. 

EQUALITY, 

in  partition,  164n. 

EQUITABLE  ESTATES, 
dower  in,   292. 
dower  in  Virginia,  294. 

EQUITABLE   LIFE   ESTATE, 

restraint  on  alienation,  271n. 


GENERAL    INDEX.  563 

[References  are  to  Sections.] 

EQUITY, 

aider  in,  as  to  defective  execution  of  a  power,  240. 

forfeiture  for  breach  of  condition  subsequent,  not  en- 
forcible,    281. 

injunction  condition  subsequent,  280. 

relief  against  enforcement  of  penalties,  282. 

relief  against  forfeiture  for  breach  of  condition  subse- 
quent, 282. 

relief  for  condition  precedent,  282n. 

specific  performance,  as  to  conditions  subsequent,  279. 

EQUITY  OF  REDEMPTION, 

dower  in,  of  mortgaged  land,  301. 
dower  in  United  States,  303. 

dower  in,  when  mortgage  is  foreclosed  in  husband's  life- 
time, 302. 

ESTATES, 

freehold,   9. 

freehold,  classified,  33. 

real  and  personal,  8. 

ESTATE  AT  WILL, 
defined,  67. 

distinguished  from  estate  from  year  to  year,  67. 
how  created,  67. 

ESTATE  BY  SUFFERANCE, 
defined,  68. 
to  regain  possession,  68. 

ESTATE  FOR  LIFE, 

conditional   limitation   on   alienation   good   when   attached 

to  life  estate,  270. 
effect  of  limitation  over,  222. 
emblements,   44. 
enlarged  to  a  fee  tail,  223n. 
limit  for  natural  life,  42. 
reversion  annexed,   243. 
reversion  as  to  rents  on  death  of  lessee,  60. 

ESTATES    FOR   LIFE    OF   ANOTHER, 
Virginia  rule,  47. 


564  GENERAL    INDEX. 

[References  are  to  Sections.] 

ESTATE  FOR  YEARS, 

alienation  of,  void,  271n. 

conditional  limitation  on  alienation  attached,  270. 

distinguished  from  an  interesse  termini,  49. 

landlord  and  tenant  entitled  to  notice  of  termination,  65. 

tenancy  from  year  to  year  defined,  65. 

ESTATES   IN  FEE, 

words  of  limitation,  41. 

ESTATES   IN  FEE   SIMPLE, 

See    Fee    Simple. 

ESTATES   IN  LAND, 

with  power  of  disposition  annexed,  241. 

ESTATES  LESS  THAN  FREEHOLD, 
emblements,  69. 

ESTATES  ON  CONDITION, 

See  Conditions. 
nature  and  classification,  249. 

ESTATE-TAIL, 

after  possibility  of  issue  extinct,  48. 

cannot  exist  by  implication  when  failure  of  issue  definite, 

224. 
defined,  39. 

ESTOPPEL, 

by  tenant  to  deny  landlord's  title,  66n. 

ESTOVERS   AND   EMBLEMENTS, 
incident  to  life  estate,  44. 

EXECUTOR  AND  ADMINISTRATOR, 

appointment  of  debtor  as  executor,  109. 

corporation  may  be,  96n. 

defined  and  distinguished,  95. 

de  son  tort,  97. 

liability  of  personal   representative,  106. 


GENERAL    INDEX.  565 

[References  are  to  Sections.] 

EXECUTOR  AND  ADMINISTRATOR— Continued. 
order  of  payment  of  decedent's  debts,  107-8. 
power  of  an  executor  of  an  executor,  99. 
power  of  executor  before  probate,  100. 
powers  of  personal  representative,  105. 
right  of  retainer  by  executor,   110. 
temporary  grant  of  administration,  98. 
who  entitled  to  qualify  as  administrator,  101. 
who  may  be,  96. 

EXECUTOR  OF  LIFE  TENANT, 
rule  as  to  fixtures,  25. 

EXECUTORS, 

competent  witnesses  to  wills,  85. 

EXECUTORY    DEVISES, 

See  Executory   Interests. 

contingent  remainder  may  not  be  construed  as,  214. 

examples,  211. 

limited  per  verba  de  praesenti,  214. 

of  fee  on  a  fee,  211n. 

of  a  fee  on  a  fee  not  affected  by  a  failure  of  first  estate, 

214. 
rules  for,  214. 
sacred  rule,  207. 

EXECUTORY   INTERESTS, 

See    Executory    Use    and    Executory    Devise. 

classified  and  defined,  206. 

effect  of  the  words  "if  he  die  without  issue"  on  a  prior 

fee  simple,  223. 
examples  not  violating  rule  against  perpetuities,  217. 
examples  violating  rule  against  perpetuities,  216. 
how  distinguished,  208. 

limitation  in  deed  must  be  considered  remainder,  207. 
limitation  over,  dependent  on  if  he  die  without  issue,  on 

a  prior  estate  for  life,  222. 
may  be  vested,  211n. 
no  estate-tail  by  implication  when  failure  of  issue  definite, 

224. 


566  GENERAL    INDEX. 

[References  are  to  Sections.'] 

EXECUTORY  INTERESTS— Continued. 
personalty,  233. 

practical  test  to  recognize,  209. 
rule  against  perpetuities,  219. 
rule  of  perpetuities,  215. 
sacred  rule,  207. 

springing  use  and  shifting  use  distinguished,  211. 
Virginia  statutes,  234. 

EXECUTORY  LIMITATIONS, 

before  and  after  Jan..  1,  1820,  225. 

EXECUTORY  USES, 

See  Executory  Interests. 

examples,  210. 
shifting  use,  210. 
springing  use,  210. 

EXONERATION, 

dower  in  mortgaged  land  out  of  husband's  other  land,  306. 
dower  in  mortgaged  land  out  of  husband's  personalty,  305. 
dower  out  of  personalty  as  against  pecuniary  legatee,  305n. 

EXPECTATION  OF  LIFE, 
mortality  table,   307. 

FAILURE  OF  ISSUE, 

See   Issue. 

F 
FEARNE, 

four  classes  of  remainders,  178. 

FEE, 

base  or  qualified,  defined,  37. 

limitation  by  devise,  36. 

passes  without  words  of  limitation,  36. 

FEE    SIMPLE, 

abeyance,  180. 

distinguished   from  base   fee   and  fee   conditional,   34. 
estate  descends  to  kindred  of  owner,  35. 
effect  of  words  "if  he  die  without  issue"  on  a  prior  fee 
simple,  223. 


GENERAL    INDEX.  567 

[References  are  to  Sections.] 

FEE  SIMPLE— Continued. 

limitation  by  feoffment,  35. 
nature  of  estate,  34. 

provision    restraining    alienation    of    estate,    real    or    per- 
sonal, void,  271. 
reduced  to  fee-tail,  223n. 

unqualified  condition  cannot  be  joined  with,  -270. 
words  of  limitation,  41. 

FEE  SIMPLE  CONDITIONAL, 
defined,  38. 

FEE-SIMPLE    ESTATE, 
defined,   34. 

FEE-TAIL, 

conditional  limitation  on  alienation  attached,  270. 
guardianship  of  minor,  2. 

FEUDAL  SYSTEM, 

historical,  In,  2. 

right  to  sell  under,  acquired,  35. 

FINE, 

right  of  alienation,  2. 

FIXTURES, 

agricultural,  erected  for  use,  29. 

annexation  to  realty,  17. 

constructive  annexation,   20. 

debtor  and  execution  creditor  rights  between,  21. 

defined,  15 

domestic,  removable,  28. 

executor  of  life  tenant  and  remainderman,  25. 

furnaces,  24. 

gas  fixtures,  24. 

heir  and  executor,  17-24. 

landlord  and  tenant,  26. 

machinery  mode  of  annexation  determines,  22. 

manure,  24,  30. 

miscellaneous  examples,  24. 

mortgagor  and  mortgagee,  21. 

qualification  of  right  of  removal  by  tenant,  31. 

railway  rolling  stock,  23. 


568  GENERAL    INDEX. 

[References  are  to  Sections.] 

FIXTURES— Continued. 

removable,  exceptions,  28. 

rules  to   determine,   18. 

stoves,  24. 

Teaff  v.  Hewitt,  19. 

test,  18. 

time  of  removal  by  tenant,  32. 

trade,  removable,  27. 

vendor  and  vendee,  rights  between,  21. 

what  erections  removable,  27. 

FORFEITURE, 

alienation,  270. 

default  in  payment  of  rent,  282(2). 

waste,  46. 

FORMS, 

deed  of  grant  in  Virginia,  119. 

FRAUD, 

on  a  power,  239. 

FRAUD  AND  MISTAKE, 
as  to  title,  130n. 

FREEHOLD  ESTATES, 
classification,  33. 
defined,  9. 
distinguished  from  estates  not  of  freehold,  9. 

G 
GIFTS, 

dependent  on  marriage,  269n. 

GOODS  AND  CHATTELS, 

See    Personal    Property. 

GRASS, 

estate  in,  11. 

H 
HEIRS, 

grant  to  heirs  intends  lineal  heirs,  38. 
need  not  prove  ancestors'  intestacy,  70. 


GENERAL    INDEX.  569 

[References  are  to  Sections.] 

HEIRS— Continued. 

not  in  esse  at  ancestor's  death,  77. 

when  applied  as  fee  simple  conditional,  38. 

word  not  necessary,  36. 

word  of  limitation,  35. 

HEIR  AT  LAW, 

purchaser  from,  103n. 

HEIRS;   HEIRS  OF  THE  BODY, 
interpretation  of  v/ords,  200. 

HEREDITAMENT, 
denned,  6. 

HISTORICAL, 

names  of  property,  1. 

HOMAGE, 

under  feudal  system,  2. 

HOTCHPOT, 

advancements  must  be  turned  into,  165. 

defined,  165. 

election  of  person  advanced,  172. 

for  benefit  of  children,  not  widow,  170. 

what  property  may  be  given,  169. 

HOUSES, 

estate  in  when  built  on  another's  land,  14. 

HUSBAND  AND  WIPE, 

witnesses  to  wills,  85n. 


I 

INCORPOREAL  TENEMENTS, 

See  Tenements. 

IMMOVABLE  PROPERTY, 

distinguished  from  movable,  1. 


IMPLIED  COVENANTS, 
leases,  62. 

f  37 


570  GENERAL    INDEX. 

[References  are  to  Sections.'] 

INFANTS, 

adverse  possession,  142. 

descent  from,  74. 

guardianship  under  feudal  system,  2. 

not  in  esse  at  ancestor's  death,  77. 

INHERITANCE, 

per  stirpes  per  capita,  72. 

right  to  title  by  murderer  of  ancestor,  70n. 

INITIALS, 

when  sufficient  signature  to  wills,   87. 

INJUNCTION  IN  EQUITY, 

See    Equity. 

INSANITY, 

adverse  possession,  142. 

INTOXICATING  LIQUORS, 

construction   of  deeds   prohibiting   sale,   263. 

ISSUE, 

definite  and  indefinite  failure  defined,  221. 

effect  of  definite  failure  on  rule  in   Shelley's  Case — Prof. 

Miner's  view,  228. 
interpretation  of  word,  200. 
law  presumes  possibility,  217n. 


JOINT  TENANTS, 

See  Advancement. 

alienation  of  land  paramount  to  survivorship,  150  (2). 

definition,  145. 

distinguished  from  tenants  in  common,  148. 

right  of  survivorship  between,  149. 

right  of  survivorship  paramount  to  encumbrances,  150  (3). 

survivorship  between  abolished,  152. 

survivorship  paramount  to  will,  150. 

unities  classified,  146. 

unity  of  interest,  147. 

unity  of  possession,  148. 


GENERAL    INDEX.  571 

[References  are  to  Sections.] 

L 
LAND, 

covenants  running  with,  64. 

defined,  3. 

dower  in  encumbered,  299. 

estates  in,  8. 

estate  in  house  built  by  other  than  owner,  14. 

title  by  devise,  80. 

LANDLORD  AND  TENANT, 
adverse  possession,  139n. 
estoppel  to  deny  landlord's  title,  66n. 
notice  of  termination,  65. 
notice  to  quit,  66. 
removal  by  tenant  of  fixtures,  31. 
rule  as  to  fixtures,  26. 

LEASE, 

actual  distinguished  from  contract  to  lease,  51. 

administrator  acquires  as  personal  property,  10. 

assignee  bound  by  covenants,  63. 

chattel  real,  10. 

classified,  52. 

condition,  not  to  assign  without  license,  285n. 

covenants  affecting  sublessee,  63. 

covenants  running  with  land,  64. 

creation  for  years,  52. 

defined,    50. 

ejectment,  61. 

mining,  50n. 

notice  to  quit,  66. 

special  covenants,   62. 

tenant  holding  over  term,  68. 

termination,   61. 

when  must  be  in  writing,  52. 

words  creating,  50. 

LEASE  AND  RELEASE, 
defined,  115. 
dependent  on  condition  precedent,  250n. 

LEGACIES, 

See  Wills. 


572  GENERAL    INDEX. 

[References  are  to  Sections.] 

LEGAL  PHRASES, 

Per  my  et  per  tout,  148,  149. 

LESSEES, 

of  tenants  for  life,  45. 

LETTERS, 

effect  as  wills,  88. 

LIFE  ESTATE, 

restraint  on  alienation,  271n. 

LIMITATIONS, 

collateral,  by  way  of  base  fee,  256. 

collateral  denned,  255. 

conditional  limitations  distinguished  and  defined,  212. 

defined,  192. 

distinguished  from  condition  subsequent,  253. 

effect  of,  over  after  dying  without  issue — tabular  view,  page 

284. 
estates  in  fee  and  in  tail,  41. 
executory,  before  and  after  January  1,  1820,  232. 
remainder  after  collateral  distinguished  from  conditional 

limitations,  255n. 
words  not  necessary  to  constitute  fee  simple  title,  36. 

LIVERY  OF  SEISIN, 
defined,  10. 

M 

MACHINERY, 

when  fixtures,  22. 

MARRIAGE, 

conditions  in  restraint  of,  268. 

gifts  dependent  on,  269n. 

limitation  or  condition  subsequent,  254. 

reasonable  or  unreasonable  restraints,  268n. 

MARRIED  WOMEN, 

adverse  possession,  142. 
defective  execution  of  a  power  by,  240n. 
may   be   restrained    from   alienating   separate   life   estate, 
271n. 


GENERAL    INDEX.  573 

[References  are  to  Sections.] 

MARSHALLING, 

by  legatees,  111. 

MAXIMS, 

alienatio  rei  praefertur  juri  accrescendi,  150  (2). 
dos  de  dote  peti  non  debet,  298. 
jus  accrescendi  praefertur  oneribus,  150  (3). 
jus  accrescendi  praefertur  ultimae  voluntati,  150. 

MAY  v.  JOYNES, 

Virginia  cases  distinguishing,  246. 

MINERAL  RIGHTS, 
nature,  12. 

MINING  LEASES, 

See  Leases. 

MORTGAGES, 

an  interest  in  land  of  a  personal  nature,  9. 

proportion  widow  liable  for  as  between  herself  and  heirs, 

309. 
purchase  money,  denned,  300. 
when  paramount  to  right  of  survivorship,  150  (3). 

MORTALITY  TABLE, 

widow's  expectation  of  life,  how  ascertained,  307. 

MORTGAGED  LAND, 

dower  in  equity  of  redemption,  301. 

N 

NOTICE, 

landlord  and  tenant  as  to  termination,  65. 
to  quit  possession,  66. 

O 

OWELTY  IN  PARTITION, 

See  Partition. 


PARTITION, 

advancements,  166. 

assignment  of  dower  in  suit,  316n. 


574  GENERAL    INDEX. 

[References  are  to  Sections.] 

PARTITION— Continued. 

in  equity  as  between  cotenants  generally,  163. 
sale  instead  of  partition  in  kind,  164. 
who  entitled  to,  162. 

PATENTS, 

conflicting  grants,  141. 

PENALTIES, 

non-performance  of  collateral  act,  282n. 
relief  in  equity  for,  282. 

PER  CAPITA, 

defined,  72. 

PER  MY  ET  PER  TOUT, 

as  affecting  joint  tenancy,  148. 

PER  STIRPES  AND  PER  CAPITA, 

defined,  72. 

Virginia  statute  explained,  72. 

PERPETUITIES, 

applied  to  contingent  remainders  and  executory  interests, 

219. 
executory  interest  not  violating,  217. 
executory  interest  violating,  216. 
Fearne's  view,  233. 
rule  against,  174,  215n,  220. 

rule  against,  applied  to  condition  subsequent,  275n. 
rule  of,  for  contingent  remainders,  187. 
rule  for  executory  interest,  215. 

PERSONALTY, 

appraisement,  103. 

executory  interest,  233. 

wills  for,  same  as  for  realty,  94. 

PERSONAL  PROPERTY, 
chattels  real,  10. 
disposed  of  by  will,  81. 
distinguished  from  real,  1. 
goods  and  chattels  under  feudal  system,  4. 
house  built  by  other  than  owner  of  land,  14. 
includes  corporeal  and  incorporeal,  13. 
mineral  rights,  12. 
origin  of  term,  7. 


GENERAL    INDEX.  575 

[References  are  to  Sections.] 
PERSONAL  REPRESENTATIVES, 

See  Executors  and  Administrators. 

POWERS, 

aider  in  equity  of  defective  execution,  240. 

appointment  distinguished  from  an  interest  in  land,  241. 

appointment  over  property  denned,  235. 

defective  execution  by  married  women,  240n. 

disposition  over  property  on  estate  of  devisee,  242. 

estate  given  to  person  generally  or  indefinitely,  247. 

fraud  on,  239. 

May  v.  Joynes  distinguished,  246. 

not  coupled  with  a  trust,  238  (3). 

over  property  classified,  238. 

power  in  trust,  238  (2). 

reversion  is  annexed,  when,  243. 

Smith  v.  Bell,  explained,  248. 

will  for  deed  in  the  exercise  of,  240  n. 

PROCEDURE, 

on  partition,  164n. 

PROPERTY, 

power  of  appointment  over,  235,  236,  237. 

PUR  AUTER  VIE, 

does  not  apply  in  Virginia,  47. 

PURCHASE, 

denned,  192. 

Q 

QUARANTINE, 

See  Widow's  Quarantine. 
QUIA  EMPTORES, 

effect  on  rents,  54. 

granting  right  to  sell  real  estate,  35. 

R 

RAILROADS, 

rolling  stock,  when  personalty,  23. 

REAL  ESTATE, 

defined  and  classified,  9. 


576  GENERAL    INDEX. 

[References  are  to  Sections.] 

REAL  PROPERTY, 

distinguished  from  personal,  1. 

growing  timber  and  grass  considered,  11. 

house  built  by  other  than  owner  of  land,  14. 

mineral   rights,   12. 

origin  of  term,  7. 

statute  of  quia  emptores  granting  right  to  sell,  35. 

RESCISSION, 

of  support  deeds,  281n. 

REDEMPTION, 

See  Equity  of  Redemption. 

REMAINDERS, 

abeyance,  Fearne's  view,  181. 

abeyance,  fee  simple,  180. 

after  collateral  limitation  distinguished  from  conditional, 

255n. 
cannot  be  limited  after  fee  simple,  182. 
cannot   be   separated    from   particular   estate,   182. 

REMAINDER, 

See  Rule  in   Shelley's   Case. 

cannot  take  in  derogation  of  particular  estate,  182. 

classified,  174. 

contingent,    by    way    of   use,    213. 

contingent  by  will,  213. 

contingent,   how   destroyed,   185. 

contingent  may  be  conveyed,  190. 

contingent  not  alienable  at  common  law,  190n. 

contingent,  not  of  freehold,  requires  no  freehold  sup- 
port, 176. 

contingent,  of  freehold,  must  vest  eo  instanti,  176. 

contingent,  of  freehold,  requires  particular  estate  to  sup- 
port, 176. 

contingent,  rule  against  perpetuities,   220n. 

contingent,  sale  of,  by  decree  of  court,  191. 

contingent,  subject  to  rules  of  common  law,  213. 

contingent,  with  double  aspect,  183. 

cross,  defined,  184. 

cy  pres  doctrine  as  to  contingent,  188. 


GENERAL    INDEX.  577 

[References  are  to  Sections.] 

REMAINDER— Continued. 
defined,  173. 

descendible  and  devisable,  189. 
dower  in,  296. 

examples    of    limitations    to    surviving    children    in    Vir- 
ginia, 204. 
examples  of  vested,  177. 
Fearne's  four  classes,  179. 
bow  preserved  at  common  law,  186. 
in  deeds  by  way  of  use,  and  in  devises.  213. 
must  have  support  of  particular  estate,  182. 
not  under  Fearne's  third  class,  179. 
rule  against  perpetuities  for  contingent,  219. 
Rule  in  Shelley's  Case,  193. 
rule  of  perpetuities  for  contingent,  187. 
surviving  children,  meaning  of  words,  203. 
three  great  rules,  175. 
to  heirs,  heirs  of  body  or  issue,  199n. 
vested,  211n. 

vested,   of   freehold,   requires   no   freehold   support,    176. 
Virginia  statutes  changing,  205. 
words  of  limitation  and  purchase,  192. 

REMAINDERMAN, 

rules  as  to  fixtures,  25. 

RENT, 

common  lav/  defined,  53. 

effected  by  quia  emptores,  54. 

ejectment  for  non-payment,  59. 

forfeiture  for  default  in  payment,  282  (2). 

go  to  personal  representative  on  lessor's  death,  60. 

granted  out  of  land,  55. 

how  reserved,  58. 

incident  of  land,  5. 

reserved  out  of  real  property,  57. 

tenant  must  pay  for  emblements,  44. 

when  become  due,  59. 

RENT  SERVICE, 

incident  to  reversion,  54. 

RESTRAINT  OF  MARRIAGE, 

See   Marriage. 


578  GENERAL    INDEX. 

[References  are  to  Sections.] 
RESTRAINT  ON  ALIENATION, 

See  Alienation. 

REVERSIONS, 

dower  in,  296. 

may  be  vested,  211n. 

when  annexed  to  an  estate  for  life,  243. 

REVOCATION, 

See  Wills. 

RIGHT  OF  REVERTER, 

defined,  38. 

RIGHT  OF  WAY, 

incident  of  land,  5. 

RULE  AGAINST  PERPETUITIES, 

See  Perpetuities. 

RULE   IN   SHELLEY'S   CASE, 
distinguished,  193. 
effect  of  rule,  196n. 
five  requisites  of,  194. 
inflexible  character  of,  196. 
origin  of  rule,  195. 
status  of  in  United  States,  198. 
Virginia  statutes,  199. 

RULE  IN  WILD'S  CASE, 

See    Wild's    Case. 

S 

SEISIN, 

See  Livfry  of  Seisin. 

difference  between  seisin  in  fact,  seisin  in  law,  and  right 

of  acting  for  entry,  290. 
transitory,  distinguished,  300n. 

SHELLEY'S   CASE, 

See  Rule  in  Shelley's  Case. 


GENERAL    INDEX.  C79 

[References  are  to  Sections.] 
SHIFTING  USE, 

See  Executory   Uses. 

SMITH  v.  BELL, 

status  of  doctrine,  248. 

SPRINGING  USE, 

See  Executory  Uses. 

SPECIFIC  PERFORMANCE  IN  EQUITY, 

See  Equity. 

STATUTE    OF   LIMITATIONS, 

subtraction  of  war  period,  144. 

STATUTE  OF  USES, 

See   Uses. 

affecting  conveyances,  113. 

denned,  114. 

in  United  States,  116. 

STATUTE   ON   WILLS, 

See  Wills. 

SURVIVORSHIP, 

See  Joint  Tenants. 
rights  between  joint  tenants,  149. 

T 

TABLES  OF  MORTALITY, 

Wigglesworth's  table  adopted  in  Virginia,  307n. 

TABULAR  VIEW, 

executory  limitations,  page  284. 

TACKING  DISABILITIES, 
not  allowed,  143. 

TENANCY  IN  COMMON, 

See  Joint  Tenants. 


580  GENERAL    INDEX. 

[References  are  to  Sections.] 

TENANTS  BY  ENTIRETIES, 
defined,  151. 

distinguished  from  joint  tenants,  154. 
right  of  survivorship  between,  153. 

TENANTS  IN  COMMON, 

See   Advancement. 

distinguished,  155. 
how  created,  155n. 
take  by  purchase,  156. 

TENANTS  FOR  LIFE, 

privileges  of  lessees,  45. 

TENANCY  FROM  YEAR  TO  YEAR, 

See   Estates   fob   Years. 

TENANT  AT  WILL, 

entitled  to  emblements,  69. 

TENEMENTS, 

corporeal  and  incorporeal  distinguished,  5. 
distinguished  from  hereditaments,  6. 
under  feudal  system,  2. 

TENURE, 

English  lands  under  feudal  system,  2n. 

TERM   OF   YEARS, 

effect  of  breach  of  condition  subsequent  annexed  thereto, 

277n. 

TESTATOR, 

devise  takes  effect  at  death,  89. 

TESTAMENTARY  CAPACITY, 

requisite  to  make  valid  will,  93. 

TIMBER, 

estate  in,  11. 

TIME, 

to  be  subtracted  in  Virginia  in  computing  for  adverse  pos- 
session, 144. 


GENERAL    INDEX.  581 

[References  are  to  Sections.] 

TITLE, 

mistake  as  to   title  authorizes   rescission,   130n. 
modern  covenants  of  title,  130. 
warranty  not  implied,  130n. 

TITLE   BY  ADVERSE    POSSESSION, 

See  Adverse  Possession. 

TRESPASS, 

as  between  cotenants,  157. 

TRUSTS, 

condition  subsequent  distinguished  from,  258. 

in  devises  and  voluntary  grants,  260n. 

powers  not  coupled  with,  238  (3). 

spendthrift,  271n. 

when  conveyance  is  for  a  particular  purpose,  260. 

TRUSTEE, 

widow  of,  not  entitled  to  dower,  295n. 

TRUST  ESTATES, 

contingent  remainders,  213. 

U 

USES, 

See  Statute  of  Uses. 

example  of  power  of  appointment  under  the  statute,  236. 
no  dower  or  curtesy  at  common  law,  292. 


VENDOR  AND  VENDEE, 

rights  as  to  fixtures,  21. 

VIRGINIA, 

accounting  between  cotenants,  161. 

adverse  possession,  137. 

children  by  adoption,  70n. 

collaterals  of  the   half  blood,  75. 

construction  of  phrase,  "to  a  woman  and  her  children,"  203. 

contingent  interests,  sale  of  by  decree  of  court,  191. 


582  GENERAL    INDEX. 

[References  are  to  Sections.] 

VIRGINIA—  Continued. 

death  of  lessee,  45. 

deed  of  grant,  117. 

distribution,  79. 

doctrine  as  to  word   "children,"  202. 

dower,  286n. 

dower,  assignment  of,  317. 

dower  in  equitable  estates,  294. 

effect  of  statutes  on  limitations  contingent  on  dying  with- 
out issue,  226. 

equity  of  redemption  of  dower,  304. 

estate-tail,  after  possibility  of  issue  extinct,  48. 

estates  for  life  of  another,  47. 

executor  and  administrator,  96. 

executory  interest,  234. 

general  code  provisions  as  execution  and  probate  of  wills, 
95-111. 

hotchpot,  165. 

inheritance  by  bastard,  76,  77n. 

leases,  52,  52n. 

leases,  special  provision  affecting,  62. 

May  v.  Joynes  distinguished,  246. 

modern  rule,  "if  he  die  without  issue,"  225. 

penalty  for  non-performance  of  conditions,  282n. 

per  stirpes  and  per  capita,  72. 

personal  property  may  be  disposed  by  will,  81. 

personal  representatives,  105-107. 

possibility  of  reverter  alienable,  276. 

remainders,  changed  by  statute,  205. 

remainders  in   fee   upon   contingency  with   double   aspect, 

224. 
rents,  when  due,  59. 
revocation  of  will,  91. 
right  of  distress,  56. 
rules  against  perpetuities,  220. 
statutes  abolishing  rule  in  Shelley's  Case,  199. 
statute  of  descents,  71,72. 
statute  of  uses,  116. 

survivorship   between   joint   tenants   abolished,   153. 
survivorship  between  tenants  by  entireties,  153. 
title  by  devise,  80. 
warranty,  132. 
wills,  80,  84. 


GENERAL    INDEX.  583 

[References  are  to  Sections.] 

VIRGINIA— Continued. 

witnesses  to  wills,  85. 

words  of  limitation,  deeds  or  wills,  41  (II). 

WARRANTY, 

apparent  injustice  of  collateral,  128. 
classified,  125. 
defined,   124. 

example  of  lineal  and  collateral,  126. 
measure  of  damages  for  breach,  135. 
purchaser  entitled  to  general  warranty,  132. 
status  now  of  ancient  feudal,  129. 
what  heirs  are  affected  by,  127. 

WARRANTY  OF  TITLE, 
not  implied,  130n. 

WASTE, 

as  between  cotenants,  158. 
defined,  46. 

forfeiture  for  committing,  46. 
liability  of  tenant,  62n. 

WIDOW'S  QUARANTINE, 

defined   and   explained,   313. 
interest  on  incumbrances,  315. 
nature  and  incidents,  314. 
rents  and  profits,  315. 
taxes,   315. 

WILD'S  CASE, 

rule  defined,  201. 

WILLS, 

See  Executor  and  Administrator. 

ademption,  111. 

alteration  of  law  between  execution  of  will  and  death  of 
testator,  226n. 

appraisement  personal   estate,  103. 

capacity  to  make,  81. 

classification,  83. 

codicil,  how  revoked,  91. 

conditions  in  restraint  of  marriage,  summary  of  the  ef- 
fect,  269. 


584  GENERAL    INDEX. 

[References  are  to  Sections.] 

WILLS — Continued. 

contract  to  make,  Sin. 

demonstrative  legacies,  llln. 

devise  must  prove,  70. 

devise  takes  effect  at  death  of  testator  as  to  both  realty 

and  personalty,  89. 
effect  of  codicil,  86. 

example  of  power  of  appointment  over  property,  237. 
for  deed  in  exercise  of  a  power,  240n. 
form  of  attestation,  84. 
formalities  for  making,  84. 
fraud  and  undue  influence,  93. 
future  estate  in  personalty,  233. 
future  limitation  not  executory  devise,  213. 
initials  when  sufficient  signature,  8. 
inventory  of  personalty,  104. 
lapsed   devises,   English   and   Virginia   rule   distinguished, 

90. 
law  governing  making,  83. 
legacies — classified,  111. 
letter  may  be  considered,  88. 
lost  will  may  be  probated,  92. 
marshalling  of  debts,  111. 
nuncupative  defined,  83. 
olograph  need  not  be  attested,  84. 
per  stirpes  and  per  capita,  73n. 
power  of  executor  of  an  executor,  99. 
realty  and  personalty  same,  94. 
revocation,  Virginia  act,   91. 
specific  legacy,  111. 
survivorship  paramount  to  will,  150. 
testamentary  capacity,  93. 
verbal  testamentary  trusts,  80n. 
Virginia  law  distinguished  from  common  law,  80. 
what  may  be  disposed  of,  82. 
what  parties  in  interest  competent  witnesses,  85. 
when  may  be  probated,  92. 
when  takes  effect,  89. 
who  are  competent  witnesses,  85. 
words  limiting  fee,  41. 

WITNESSES, 

competent  to  will,  80-85. 


GENERAL    INDEX.  585 


[References  are  to  Sections.] 


WORDS   OF    LIMITATION    AND    PURCHASE, 
defined,  192. 

WOMEN, 

See  Married  Women. 


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